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I LONDON
IT LANE. [
l_
.■■■/
*/ « /
h L , N . (^ ^. ( /-
I,L
Ow.XJ.SI
lOO
REPORTS
O F
CASES ADJUDGED
I N T H E
Court oC WiinQ'& 'Bm^,
BEGINNING
Michaelmas Term, 25 Geo. 2«
ENDING
Trinity Term, 29 & 30 Geo. 2,
By JOSEPH SAYER, Serjeant at Law.
DUBLIN:
Printed for J. MILLIKEN, No. 39, Grafton-Strebt,
1790.
PREFACE.
TT is not very eafy to determine, which
"■" is the moft ufeful method of Report-
ing a Law Cafe.
XJpon the Ijeft Coniideration, the Re-
porter was able to give the Matter, the
following Method appeared to be the
moft ufeful, and has been obferved, in
reporting the Cafes contained in this Vd^
lume.
In tlje firft Place, to fhew in what
manner the Cafe came before the Court .
in the next, to ftate the Fa^Sbs of the
Cafe, and if a Queftion did arife upon
any part of the Pleadings, to ftate fuch
Part ; then, to mention the Queftion or
Queftion?
P R E E A C E.
Queftions which arofe in the Cafe ; and
to conclude with the Judgment of the
Court. ,
As the material Things, which were
faid, and the Cafes, which were relied
upon, in arguing a Cafe, are taken No-
tice of by the Court, in giving Judg-
ment, the Arguments of Council, for the
fake of avoiding Repetition, are omit-
ted;
Upon the whole, the Endeavour has
been, to Report the Cafes in the Man-
ner, which feemed moft proper to con-
^rey the neceffary Information, and to do
this, with as much Brevity as was con-
(iftent with Perfpicuity.
Michaelmas
Michaelmas Term,
25 Geo. 2. 175I'
Sir William Lee, Chief Jujiice.
Sir Martin Wright,
Sir Thomas Denifon
Sir Michael Fofter
ifon, >JiiJlices.
' Golding verf. Crowle,
UPON a rule to fhew caufe, why a new if a bill of in-
trial fliould not be had, in an aftion diament have
upon the cafe, it appeared ; that the aclion ^^° ^^^""^ a
was for malicioufly profecuting an indift- ^^^% bill, cx-
ment for perjury ; that it was proved on the n,uft t^ p^v.
part of the plaintiflF, that upon the trial of ed in an aifli-
the indiAment he had been acquitted upon on for maiici-
the merits ; that it was proved on the part of ^^^y *!|*'^^x'
the defendant, that there was probable caufe ^iamenJ *°"
for preferring the indiftment ; that Denifon
J. before whom the aftion was tried, had di-
refted the jury, that upon this evidence they
ought to find a verdift for the defendant ;
and th^t the verdift was for the plaintiff.
The rule was made abfolute.
B And
m
«pv-
Michaelmas Term 25 Geo. 2. 1751.
■ And by the court — As the direftion of the
judge was in a matter of law, and was, in
our opinion, very right, the prefent verdift,
which is contrary thereto, ought not to
ftand. More was proved in this cafe on
the part of the defendant, than it was incum-
bent upon him to prove ; for in the cafe
oi Savilv. Roberts^ Salk. 15. it is laid down,
that if a bill of indiftment have been found
a true bill, the defendant, in an aftion for
malicioufly profecuting the indiftment, fliall
not be obliged to prove a probable caufe for
preferring the bill : But it fliall lie upon the
plaintiff to prove exprefs malice.
Rex verf. The inhabitants of Weft-
ShefTord,
A fettlement Tn an order of feflions it was ftated ; that
ed°TSr A y^'"'' ^''''^' ^^^^ hufband to the pauper,
Ing lefs^han ^^^^ ^^ refide under a certificate in the pa-
forty days up. rifli of Weji-Shefford ; that during his refi-
on ao eftate dcnce there under the certificate, John Bird
for years, ^jg father died, to whom and his afli^ns an
Somerind- ^^^^^^ ^^ ^^^ ^^^^ ^^ fourteen pounds a
tied toby a<a year, had been granted for ninety-nine years,
of kw. determinable upon the death of John Bird
the father, and John Bird, late hufband to
the Pauper ; and that after the death oijohn
Bird the father, John Bird, the Pauper's huf-
band, entered upon the eftate, and refided
upon it to the time of his death, which hap-
pened twenty-eight days after his entering
thereupon.
The queftion was. Whether John Bird,
late hufband to the Pauper, gained a fettle-
ment in the parifli of WeJl^Shefford ?
It was holden that he did not.
And
Michaelmas Term 25 Geo, 2, 1751. 3
And by Lee Ch. J. — It has been coniidered
as a fettled point, ever fince the cafe of Rex
V. the inhabitants of Grandboroughj Trin. 4 G.
1. that if a perfon become intitled by act of
law to an eftate for years, and go to refidc
thereupon, he cannot be removed from it.
It is likewife a fettled point, that if a per-
f-a refide forty days upon an eftate from
which he is irremovable, he gains a fettle-
ment : But as it has never been holden, that
a fettlement can be gained by reliding lefs
than forty days upon fuch an eftate, and as
in the prefent cafe there was a refidence of
only twenty-eight days, the pauper did not
gain a fettlement.
Wood verf. Lake.
IN a cafe referved, in an aftion upon the Aparolagrec-
cafe, it was ftated ; that the defendant l^^nt ibr the
had agreed, by a parol agreement, that the l»b«pytoftack
plaintiff fhould have the liberty of flacking ja°nVis^o(Kl^
coals upon part of a clofe belonging to thede- for fevcn
fendant, for the term of feven years, and years,
that, during this term, he Ihould have the
fole ufe of that part of the clofe, upon which
he was to have the liberty of ftacking.coals ;
and that, after the plaintiff had, purfuant to
this agreement, enjoyed the liberty of flack-
ing coals three years, the defendant locked
up the gate of the clofe.
The queftion was. Whether this agreement
"Uras good for feven years ?
Lee Ch. J. and Denifon J. were of opinion,
that it was.
And by them — ^In the cafe of Webb v. Pa-
ternqfter^ Palm. 71. it is laid down, that the
grant of a licence to flack hay upon land does
B 2 not
Michaelmas Term 25 Geo. 2. 1751.
not amount to a leafe of the land ; and, al-
though it be in that cafe faid, that fuch a li-
cence, provided the grant be for a time certain,
is irrevocable, it by no means follows, that
an intereft in the land does thereby pafs. As
the agreement in the prefent cafe was only for
an eafement, and not for an intereft in the
land, it did not amount to a leafe, and cr-\-
fequently it was, notwithftanding the ftatute
of frauds and perjuries, good for feven years.
Wright J. was abfent.
Fojier J. concurred in opinion, that the
agreement did not amount to a Icafe : But he
inclined to be of opinion, that the words in
the ftatute of frauds and perjuries, any uncer-
tain intcrejl in land^ do extend to this agree-
ment, and confequently that it was not good
for more than three years.
Lee Ch. J. and Denifon J. inclined to be of
opinion, that the words in that Statute, any
uncertain intereft in land^ do relate only to in-
terefts, which are uncertain as to the time of
their duration.
After taking time to confider. it was holden
that the agreement was good for feven years.
Tyler verf. Browning,
■i
Charcoalls TN a cafe referved, in an action upon the
not Firewood A cafe, it was ftated ; that horfes laden with
within the firewood are, by the Statute under which a
c^.^.!°l"^ ^« ^ certain turnpike was erected, exempted from
statute, ex- , * r 11 1 1 1 1 r 1
emptingfire- the payment or toll; and that the defendant,
wood from the who was coUeclor of toll at the turnpike,
payment of had infifted upon, and taken toll for a horfe
toll at at urn-^j^j^ ^j^j^ charcoal,
P^- The
Michaelmas Term 25 Geo. 2. 1751.
The queftion fulSmitted to the court was.
Whether charcoal be firewood, within the
meaning of the.ftatute?
It was holden that it is not.
In arguing this cafe, the council for the
plaintiff attempted to argue, that, although
the court fliould be of opinion, that charcoal
is not firewood, the plaintiff ought not to re-
cover : For that charcoal is certainly coal,
and that, by this act, horfes laden with coal
are only liable to half as much toll as other
horfes ; whereas the defendant has infifted up-
on, and taken the whole toll for the plaintiffs
horfes. But the court refufed to permit this
to be argued ? And Lee Ch. J. faid. As the
queftion. Whether charcoal be coal ? is n^t
fubmitted to the court by the cafe, we cannot
take it into our confideration.
Todd verf. Dodd.
UPON a rule to fliew caufe, why leave Ifoneof two
fliould not be given to enter judgment perfons, who
upon an old warrant of attorney to confefs a ^^^^ entered
judgment, it appeared ; that the warrant of ^"^„° \7'^Zot^
attorney was entered into by two perfons ; ney to confefs
and that one of them was dead. a judgment,
die, judgment
The Queftion was. Whether Judgment "^^y ^? ^"^^'■-
ought to be entered asfainft the furvivor. ^^ ^^^^"^ ^*^^
o o lurvivor.
After taking time to confidcr, it was Iv)lden
that it ought, and the rule was made abfo-
lute.
And by Lee C J. — ^In the cafe of S//7/ v. Stilly i
Barn. 35 Mich. 11 G2. the court of common
pleas
Michaelmas Term 25 Geo. 2. 1751.
pleas gave leave to enter judgment in a cafe
like the prefent : But as that court did in the
cafe of Lay cock v. Garforth^ 2 Barn. 38. Eaji.
21 G. 1. which was alfo like the prefent cafe,
refufe to give fuch leave, the cafe of Still v.
Still is not now to be confidered as an au-
thority.
We do however think it reafonable, that
leave fliould be given in the prefent cafe, to
enter judgment againft the furvivor. It ap-
pears from divers cafes, which have been ci-
ted, that if the power given to an attorney
can be executed virtually , it maybe executed,
although it cannot be executed ftriclly ; and
in I Show. 91. it is faid to have been ruled
upon motion ; that if a woman, after having
entered into a warrant of attorney to confefs
a judgment, marry, judgment may be enter-
ed againft both her and her hufband.
Rex verf. Lediard.
A Certiorari T^ obedience to a certiorari^ for returning
does D^ lie, JL ^ coHviftion concerning the forfeiture of
for rcra^Ting a horfe, the defendant returned ; that infor-
awarraBK of mation being made to him upon oath by J.
aLJuftice oC 5^ and 7. JV; that they had fcized a horfe,
the peace. u r i. j • • • 1
^ becaule he was drawmg in a carriage, where-
in there were more than five horfes, and had
delivered him, purfuant to the direftion of
the ftatute, to a conftable ; and that upon
this information, he had iffued a warrant,
by which the conftable was commanded to
re-deliver the horfe to J. S. and J. N.
Upon this return, it was holden that the
Certiorari fiiould be quafhed.
And by Lee Ch. J. — There is in this cafe
noconviftion. It is effential to a convidlion,
that it be founded upon a proceeding againft
a perfon j
Michaelmas Term 25 Geo, 2. 1751.
a perfon ; but in the prefent cafe, the pro-
ceeding was againll a thing. It is likewife
eiTential to a convidion, that it be a judicial
zSt ; but the iffuing of the warrant in the pre-
fent cafe was a minifterial aft, which the de-
fendant was required by the ftatute giving the
forfeiture to do. A Certiorari does not lie for
removing a warrant of a jufticc of the peace ;
the remedy for the party thereby injured be-
ing by an aftion.
Kirk veff. Broad.
A Rule having been obtained, forchang- ThcTcnae
ing the venue in an aftion upon the maybechang-
cafe, wherein the plaintiff had declared upon f^*"?.^*""^'*
a promiffory note, the queftion, upon a rule a^ionu^a
to ftiew caufe why that rule fliould not be fet promiffory
afide, was, Whether the venue could in fuch note.
action be changed ?
It was holden that it might.
And by Lee Ch. J. — It is the fettled prac-
tice (a) of this court, that the venue may be
changed in any aftion, the right of which is
founded upon fimple contract. If an adion
be brought in this court upon a policy of in-
furance, the venue may be changed, unlefi
the policy be a deed.
Weaver verf. Chandler.
UPON a rule to fhew caufe, why an Ex- he^vt given
oneretur fliould not be entered upon the to enter an
bail piece, it appeared that the bail had ren- Exoneretur on
the bail piece.
(a) The practice of the court of common pleas is dif-
ferent as to this matter from that of th^ court of king's .
bench. If the right of an adtion in that court be either in
the whole or in part founded upon a promiffory note, the
▼eniie» as appears from i Bam. 341, 345, 349. 2 Bam.
990. 392. cannot be changed.
dcted
Michaelmas Term 25 Geo. 2. 1751.
dered the defendant regularly, and had given
notice of the render to the plaintiflF's at tor-
ney ; that the defendant had been fince in
cuftody ; and that the defendant's attorney
had omitted to enter an Exoneretur upon the
bail piece.
The rule was made abfolute, upon paying
the cofts which had accrued fince the ren-
der.
Rex verf. The Inhabitants of Ham.
A fettlement
cannot be
gained by a
lervice which
commences
before the
iSring.
I
N an order of feffions it was ftated ; that
the Pauper had ferved J. S. in the parifh
of Ham eight weeks upon liking ; that at the
end of the eight weeks J. S. hired him for a
year, to commence from the beginning of
the eight weeks; and that, including the
eight weeks, he ferved a year and ten days.
The queftion was, Whether the Pauper
gained a fettlement in the parifh of Ham ?
It was holden that he did not.
And by the court — ^There muft, in order
to gain a fettlement, be a hiring for a year,
either abfolute or conditional, previous to
the commencement of the fervice, which
there was not in the prefent cafe. The cafes
have already gone far enough, if not too far,
as to the gaining of a fettlement by hiring
and fervice : But no one has gone fo far as to
hold, that the hiring may have a retrofpeft
to a fervice anterior thereto.
Cary
Michaelmas Term 25 Geo. 2. 175 1.
Carey vtrf. Humot.
UPON a riile to (hew caufe,.why the
judgment ihould not be fet aifide for ir-
regularity, it appeared ; that the judgment
was figned for non-payment for the iffue ; and
that it was figned within twenty-four hours
after the delivery of the iffue.
The rule was made abfolute.
And by the court — ^a reafonable time after
the delivery of the iffue ought to be allowed
for payment; and we are of opinion, that
lefs than twenty-four hours is> not a reafon-
able time.
A judgment
figned for non-
payment for
the ifTue fet
afide, becaufe
figned in lefs
than twenty-
four hours.
Rex verf. The Inhabitants of Marden.
IT was fiated in an order of feffions ; that
the Pauper and y. S. jointly hired a te-
nement in the parifli of Marden, at the rent
of fixteen pounds a year ; "that they occupied
it jointly ; that each of them paid a moiety
of the rent ; and that the tenement had then-
tofore been let for twenty pounds a year.
The queftion was, Whether the Pauper
gained a fettlement in the parifh of Marden ?
It was holden that he did not.
And by the court — As the tenement is not
ftated, to be at prefent of the value of twen-
ty pounds a year, we cannot take it to be
fo.
C It
A fettlement
cannot be
gained by hir-
ing the moiety
of a tenement
of the annual
value of fix-
teen pounds.
lo Michaelm^ TcDxn 25 Geo. 2. 1751*
It has been faid, that as each of the tenants
was liable to the whole rent, the Pauper ouffht
to gain a fettlement : But it is certain, that
neither of them had an intereft in more than
a moiety of the tenement, which is only
eight pounds a yean
It has Kkewife been faid, that, as no power
of removal is given by the 13 fef 14 Ch. 2.
c. 1 2. as to any perfon or perfons coming to
fettle in a tenement of the value of ten pounds
a year, the Pai^r^ being one of two perfons
wno jointly hired a tenement of the yearly
value of fixteen pounds, did thereby become
irremoveable, and confequently he gained a
fettlement : But although the word perfons be
in the Statute, it never could be the inten-
tion of the Legiflatur^, that two perfons
ihould eain a fettlement, by hiring a tene-
ment ot the yearly value of ten pounds.
Hilary
Hilary Term
25 Geo, a. 1752.
Sir William tee. Chief juUce.
Sir Mardn Wright, 1
Sir Thomas Denifbn, Vyufiices^
Sir Michael Poller, J
Rex verf. The rnhabilfants of Buck-
ingham*
IN an order of feflions it was ftated ; that a fon, ^o
the Pauper^ together with his feunily, of comeswithhis
which the Pauper was a part, came to refidc fetherto refide
in the parifli of Buckingham, under a certifi- 'l^f^lT
cate given to the father ; that, during the c«e*given to
refidenceof the Pauper with his father under the&ther,
the certificate, he was hired for a year as a cannot gain a
fervant in the parifli of Buckingham ; and that fe"|en»e« •'7
he ferved the year in that panfli. 5m"p°arim
during fuch
The queftion was. Whether the Pauper rS?'^"*"'*
gamed a lettlemcnt in the parifli of Buck'- dcr the hir-
inghafn ? ing.
It was holden tUat he did not.
C 2 Axv4
12 Hilary Term 25 Geo. 2. 1752.
And by the court — The Pauper came to re-
fide in the parifli of Buckingham under a cer-
tificate; and it is by the ^ Iff 10 W. 3. c. 11.
enacted, " That no perfon whatfoever, who
" fliall come into any parifh by a certificate,
*' fliall be adjudged, by any act whatfoever,
„ to have procured a legal fettlement in fuch
*^ parifli, unlefs he fliall really and bona fide
'' take a leafe of a tenement of the value of
** ten pounds, or fliall execute fome annual
** office in fuch parifli, being legally placed
" in fuch office/'
Wright verf. Macevoy.
UP O N a rule to fliew caufe, why a writ
of Fieri Facias fliould not be fet afide.
A writof Fi^
trt Facias may
be amended
by adding a the queftion was. If the writ could be amend-
y^^r thereto, ed by adding a Tejle thereto ?
It was holden that it might.
And by Lee Ch. J.— According to what is
laid dowii in divers old cafes, which have been
cited, a writ is not amendable by adding a
Tejie thereto: But courts have of late years
gone much further in ordering amendments
than they did heretofore.
It has been did, that there is in the prefent
cafe nothing to amend by: But an award of
a writ of Fieri Facias^ with a Tefie^ may be
entered upon the roll, and when this done,
the writ may be amended by the Roy.
Lewis
Hilary Term 25 Geo. 2. 1752. 13
Lewis verf. Wallis.
TN an aftion upon the cafe, for the ufe and rt^^UlL^
•*- occupation of land, by the permliTion of carniTrbc
the plainti£F, the defendant pleaded nil habuit pleaded io an
in tenementis. a<^»on for the
Upon a demurrer to this plea, it was holden "^^ ^"^ ^*
to be bad. '^P'''°"?'^
And by Lee Ch. J. — Actions for the ufe of the plaintiff.
and occupation, which were heretofore much
difcouraged, have of late years been en-
couraged, and a recovery in them is, in cer-
tain cafes, made more eafy by a modern
ftatute.
Inthe cafe ofi2/VA^r^j v. Holditch^ Hil. 13
G. 2. it was holden, upon great confideration,
that nil habuit in tenementis is not a good plea,
in an aftion for the ufe and occupation of a
houfe by the permiffion of the plaintiff: And
it would be very unreafonable, that the de-
fendant in fuch action fhould be allowed to
deny the title of the plaintiff, by whofe per-
miffion he entered upon,, and occupied the
premifes.
In order to diftinguifh the prefent cafe from
the cafe of Richards v. Holditch, it has been
faid ; that it is not in this cafe exprefsly al-
ledged, that the land was the land of the
plaintiff; whereas in the cafe of Richards v.
Ffoiditch^ it was exprefsly alledged, that the
houfe was the houfe of the plaintiff: And
upon the ground of this diflinftion it has been
argued ; uiat for want of its being exprefsly
alledged, that the land was the land of the
plaintiff, there is not a good confideration
let out by the plaintiff, and confequently that
the
14 Hilary Term 251 Geo. 2. 1/5 3»,
the promife of the defendant to pay for the
ufe and occupation is nudum PaSfum. But we
are of opinion^ that the allegations^ whiehr
ar6, that the defendant ufed and occupied thd
land at his own requeft, and by tlie permiffioa
of the plaintiff; atnd that he promifed to pay
for the ufe and occupation, do fo ftrongly
irtlply, that the lafnd was the land of the
plaintiff, that if the court fliould intend it
Was riot, it would be a very foreign intend-
Iherit.
Rex vsrjl Spencer^
Thcdcrk in X TPON a rule fof the defendant's clerk to
coon is bound \jf fliew caufe, \^hy he IhouM not perfect
SuM^^he^ the Pojlea^ by entering an acquittal, and
/Mi^jStcran ^i*^g *^ iiiito GOlirt, it appeared ; that upon
ae^ittalop-' r^it)oviiig the indi6htient from a court of
00 an indi^ quarter feffions^ a recognizance had been en^
tered into by the defe^ndantf's bail, the terms
of' which wet^e, tliat tlie defendant fliouid-
cuufe the: indiiJtment t0 be trifed at a tSnie aiid'
place therein mentioned, at his own expence ;
thaet the in<il<?^toeift' was tried at tlib time aild
ptece mentioned in the recognizance ; that
thttf defendant Was acquitted; and^thatlie had
nc^t paid the bill diie to his clerk in court for
fees.
The qtieltion was. Whether the clerk in
cburt caught to petfeft the Pojiea^ by entering
an acquittal j and bring it into court, before
his bill for fees was^ paid ?
It was holden that he ought.
The Fojiea being, afterwards perfecled and
blhmight into^ court,' amotion was- madej that
the recognizance might be difcharged.
In
Hilary Terpi 2.5 Gjcp* 2. 175a. 15
f n oppofition tp this motion it wa^ (aid ; that
it has been the con^ant praiftice of the crown-
office, not to dii!d|pii^r;ge a recognij^anjcc iaa
csfclii^c the prefeiiit, hefp;re tl^e v^rdiS and
judgment were entered upon record; and
tj^ if thi$ pradiice is not adhered to, the
ftamp duty will be leflened ; the oSSicers of
the court will be injured ; and the records o£
the court will frequently be incompleat.
The recpgxuzance was ordiered to be di£-
cdnarged.
And by Wright J. (Lee Ck }• being abfcot)
-9-As the terms of the recognizance have been
0nnpU,ed with, it is highly reafpnable that it
ihould be difcharged.
Wipgfield vfff. Stratford and Ofaun.
IN an aftion of rrw^r, the plain tifF declared T/^^^^^
for the converfion of a gun and dog. I keeping* of
The defendants pleaded, (hat the plaintiff, an engine for
not being a perfon qualified fo to do, kept killing or
the gun and dog, the gun bcinr an engine for ^^^ftroyingthe
the killing of the game, and the dog being a ^^^^'
fetting-dog ; and that they, as fervants, and
* by the command of Sir Francis Dajhwood^ Lord
of the Manor wherein the dog and gun were
kept, took the fame from the plaintiff, as it
was lawful for them to do.
Upon a demurrer to this plea, it was holden
to he bad ; becaufe it amounted to the gene-
ral iffue.
And by Denifon J. — ^It is a fettled rule in
pleading, that no matter which amounts to
the general iffue can be pleaded fpecially ; and
the
i6 Hilary Term 25 G. 2. 1752.
the reafon is, that every fuch matter may be
given in evidence upon the general iffue. A
releafe maybe pleaded in anaftion of Trover i
becaufe the converfion is thereby admitted:
But I do not apprehend, that any matter, ex-
cept a releafe, can be pleaded fpecially in fuch
adion ; becaufe no other matter can, as I con-
ceive, be pleaded, which would not amount
to a denial of the converfion, and confequently"
it would amount to the general iffue.
It was likewife holden, that, if this plea had
not been bad, by reafon of its amounting to
thegeneral iffue, it would have been' bad; be-
caufe it is not alledged, that the gun had been
ufed for killing the game.
And by Lee Ch. J. — It is not to be imagined,
that it was the intention of the legiflature, in
making the 5 ann. c. 14. to difarm all the
people of England. As greyhounds, fetting
dogs, hayes, lu rchers and tunnels are exprefsly
mentioned in that ftatute, it is never neceffary
to alledge, that any of thefe have been ufed for
killing or deftroy ing the game ; and the rather,
as they can fcarcely be kept for any other pur-
pofe than to kill or deftroy the game : But as
guns are not exprefsly mentioned in that
ftatute, and as a gun may be kept for the de-
fence of a man's houfe, and for divers other
lawful purpofes, it was neceffary to alledge, in
order to its being comprehended within the
meaning of the words any other engines to kill the
game^ that the gun had been ufed for killing
the game.
In the cafe of (B) Rex \. Gardiner^ Trin.
II Eff 1 2 G. 2. it was holden, upon great con-
fideration,
(B) A report of this cafe has been fince publifhed in
Strange 1098, and it may be inferred from the report of the
cafe by Sir John Strange, that this point had nerer been be'>
fore
Hilary Term 25 Geo. 2. 1752. 17
fideration, that there is a di£Ference betwixt a
gun and the other thin^ expreisly mentioned
in the 5 Ann. c. 14. which can only be kept
for bad purpofes, and a convi£Uon for keeping
a gun contrary to that fiatute, was quafhed ;
becaufe it did not appear, that the gun had
been ufed for killing the game.
Murray verf. Wilfou.
IN the declaration, in an a6Uon for the cofts The defen-
of an ad^ion in an inferior court, wherein dant in an ac-
there was judgment of Nonpro/sj it was al- ooninanin-
ledged, that the inferior court had been holden „"'''^^X
from time beyond memory ; and that at a himfelf of the
court holden before a certain perfon, and at a judgment of
certain place, judgment ofiVi?n^r^ was given that court,
in an adion upon a promiffory note. without fhew-
Upon a demurrer to this declaration, it was court wm^
objeded; that the right of holding the court rightly hoi-
before the perfon, and at the place mentioned den, or had
in the declaration, isnotihewn; ^d that it jurifdiaion.
does not appear, that the caufe of adtion arofe
within the jurifdidion of the court.
The declaration was holden to be good.
And by LeeCh. J. — ^It is laid down, in divers
cafes which have been cited ; that if the plain-
ti£F in an action in an inferior court plead a
judgment in that adion, he muft fhew the
right of holding the court, and that the caufe
of adion arofe within its jurifdidion : But it
is in no cafe laid down ; that it is incumbent
upon the defendant in an adion in an inferior
court, who pleads a judgment in that adion,
D to
fore decermmed ; it being therein faid, that there was a ques-
tion vpon the point in the cafe of Kinjr v. Khg, Pafcb. 3 G.
!• bat tiiatii was notdetennined.
i8 Hilary Term 25660. 2. 1752.
to (hew either of thefethin^. It is very un-
reafonable, that the plaintiff in an a^on in an
inferior court fliould avail himfelf of a judg-
ment in that action, unleis the court was
.rightly holden, and had jurifdidion : But it
is highly reafonable, that the defendant in an
adion in an inferior court Ihould avail himfelf
of a judgment in that action, although the
court was uot rightly holden, or had not jurif-
didion ; for, as it was the fault of the plain-
tiff to bring his a£Hon in an improper court,
the defencunt ought not to be thereby pre-
judiced.
Clemens verf. Reynolds^ Adminiftraton
In what man- y jf ^n aftion Upon the cafe, the plaintiff de-
JS^'Sflff A ^^"^ ^P^^ * promifeof the defendant's
Jcadedbyan inteftatC.
adminiftnitor. The defendant pleaded a tender ; and that
he has been at all times fince the death of his
inteftate ready to pay.
Upon a demurrer to this pica, it was ihewn
for caufe ; that it b not alledged, that the
defendant's inteftate was at aS times, from
the time of makii^ the promife to the time of
bis death, ready to pay.
The plea was holden to be bad.
And by the court — ^Whenever foui temps prijl
is pleaded by an admtniftrator, he mufi al-
ledge ; that nis inteftate was s^t all times, from
the time of making promife to the time of his
death, ready to pay ; and that he has at all
times, fince the dnth of his inteftate, been
ready to pay.
Cunningham
HUary Term 25 Geo. 2. 175a. 19
Ctmningham verf. Johnfon.
THE defendant pleaded his privilege in The particu-
abatement, which was, that he is clerk lar fads ai-
of the errors in the court of Common Pleas, kgcdin a
and as fuch daily attendant upon that court, fj^^ ^ft ^
A rule for fetting this plea afide was made ^nficd £y
abfolute ; becaufe the truth thereof was not affidavit.
verified by affidavit.
And by the court — It was nece&ry for the
defendant to fwear ; that the fa<5b alledged,
namely, that he is clerk of the errors in the
court of Commoti Pleas, and that he is daily
attendant upon that court, are true.
In the cafe of (inflow v. BoQih^ Trin. 1 a G. i.
in this court, a plea of privilege was fet afide,
although it was fworn generally that the plea
was true ; becaufe it was not fworn, that the
particular h&s therein alledged were true.
Rex verf. Goodman*
UPON a rule to fliew caufe, why a fmall The court re-
fine fliould not be fet upon the defen- J?[^ j ^^J^^ *
dant, who had been conviiSted upon an indift- ^\ ^gfcn-^'
ment for a nufance, it appeared ; that the in- dant conWa*
di<^ment, which was found at a court of cd of a public
confervancy, for an encroachment of about "ofance, un-
five yards in length upon the river rA^7;7i^j, J^^^f^J,^^^^^
had been removed by the defendant into this before the
Qourt; and that the nufiince was now abated, mafter.
The rule was difcharged.
D 2 And
20 Hilary Term 25 Geo. 2. 1752.
And by the court — As the defendant will
not confent to go before the mafter, it is not
proper to fet a Imall fine. It has been faid ;
that as no recognizance for the payment of
colls was entered into upon the removal of this
indiftment, fuch a recognizance being only
required upon the removal of an indidment
from a court of quarter feffions, the profecutor
is not entitled to cofts : But this circumftance,
that the profecutor is not entitled to cofts,
becaufe no recognizance has been entered into
for the payment of cofts ; renders it quite
improper, for the court to difcharge the de-
fendant on the payment of afmall fine. It is
on the contrary highly proper ; that the court
ihould, as was done in the cafe of Rex v. Dyke^
Trin. 21 G. 2. fet fuch a fine, that the third
part thereof may be fufficicnt, to reimburfc
the profecutor a confiderable part of his cofts :
For, unlefs a profecutor is, in a cafe like the
prefent, to have a confiderable part of his cofts.
It will be a great difcouragement to profecu-
tions for public nufances.
In the cafe of i2^A: V. Haddock^ Hit. 12 G. 2.
which was a conviftion upon an indiftment
for a publick nufance, the court, notwith-
ftanding the nufance was abated, refufed to fet
a fmall fine, unlefs the defendant would con-
fent to go before the mafter ; and upon this
refufal, the defendant did confent to go before
the mafter.
£ex
Hilary Term 25 Geo. 2. 1752. 21
Rex verf. The Inhabitants of Locherly.
I
N an order of feffions it was ftated ; that A fewhrncnt
the P^w/^r hired of y. S. a cottage, in the cannot be
parifh of Locherly^ of the yearly val|ie of ?^°1^ ^^ 'V'""
twenty.five fliiUings ; the wick of a dairy of 'Ift^.f'
fixteen cows, which were to be fed upon cer- together with
tain land of J. S. at the rate of three pounds the feed of
five fliillings each cow ; and the liberty of ^^^*
feeding a horfe and fome pigs on the land
whereon the cows were to be'fed ; and that
the Pauper was moreover to have all ths fliort
ftraw which arofe in thrashing wheat, and
five loads of hay, if fo much fhould be wanted
to feed the cattle with.
The cjueftion was. Whether the Pauper
gained a fettlement in the parifh of Locherly ?
It was holden that he did not.
And by Wright J. (Lee Ch. J. being tbfent)
—Although the worcl tenement be a word of
very extepfive fignification, it cannot extend
to a perfonalty, becaufe no perfonalty can,
with any degree of propriety, be faid to lie
in tenure. The contraft in the prefent cafe,
as to every thing except the cottage. Was for
a mere perfonalty ; for although the cows of
^hich the Pauper was to have the wicli, and
the other cattle were to be fed upon land ;
yet no intereft in the land, and only the mere
right of feeding the cattle thereupon, did pafs
by the contraft. It was, moreover, part of
the contract ; that the cattle were to be fed
upon the land pf J. S.
If a nian were to hire a farm ready flocked,
at the rate of twenty pounds a year ; and the
annual
22 Hilary Term 25 Geo. 2. 1752.
annual value of the farm, exclufivc of the
flock, were under ten pounds, he would not
gain a fettlement by the hiring.
It has been truly faid, that it was not ex-
5)refsly determined, in the cafe of Rex v. The
nhabitants of Minchinghampion^ 30 G. 2. that
hiring the pafture of land would not gain a
fettlepie^t ; the determination in that cafe
beinfj founded upon a want of adjudication :
But fJie opinion of the court did, in that cafe,
appear plainly to be ; that the pafture of land
is not: a tenement, by the hiring of which a
fettle paent may be gained.
Wat fon qui tam verf. Jackfon, Boys and
Webften
Judgment as T T PON a rule to fliew caufe, why Judff-
in the cafe of U ^ent as in the cafe of a Nonfuit Ihould
L^niouo ^^^ '-^^ given, it appeared 5 that the adion
be givenl un- was for a penalty given by one of the ftatutes
Ks all the for the prefervation of the game; that the
defendants defendants had all joined in the plea of not
^plyforit. guilty; and th^t Webjier h^id not joined in
applying for the rule.
Ojfiequeftion was. Whether the 14 G. 2. r.
1 7. whereby the court is empowered to give
judgment as in the cafe 01 z Nonfuit i " In
*' any aftion between party and party,'' ex-
tends to this adion ?
It was holden that it does«
A nd by the courtr— As no part of the pe-
nalty, for which this a^ion was brought, is
given to the King^ it is, notwithftanding a
moiety of the penalty be giyen to the poor of
the parifli, wherein the offence was com-
mitted, an action between party and party.
Another
Hilary Term 2$ Geo. a. 175a. 23
Another queftion was. Whether, as Web*
fitr had not joined in applying for the rule,
judgment as in the cafe of a^o^s/u// ought to
be given ?
It was holden that it ought not.
And by the court — ^As all the defendants
have joined in the plea of not guilty, and one
of them has not joined in the application for
judgment as in the cafe of a Nmjwt^ the court
ou^t not to give fuch judgment.
Ealter
24
Eafter Term,
25 Geo- 2. 1752,
Sir William Lee,
Sir Martin Wright,
Sir Thomas Denifon
Sir Michael Fofter
Chief Jujitce.
'^ 1
Herbert verf. Williams.
The cofts of
a feigned if-
fue^ ordered
in a criminal
proceedings
ought always
to &II0W the
Tcrdi6L
UPON a rule to fliew caufe, why an in-
formation fliould not be filed againft
the defendant, for a mifdemeanor, a feigned
iffue was, by confent, ordered.
The iflue having been found for the defen-
dant, and the rule to fliew caufe having in
confequence of the verdiA been difcharged,
the queftion, upon an application by the de-
fendant for cofts, was. Whether, as cofts are
not mentioned in the rule for the feigned
iflue, or in the rule for difcharging the rule
to ihew caufe, he ought to have any ?
It
Eafter Term 25 Geo. 2. 175^^. 25
It was holden, that he ought to have the
cofts of the iffue, but not any of the rule to
fhew caufe.
And by Wright J. (Lee Ch. J. being abfent)
— ^It has been faid ; that although cofts al-
ways follow the verdict, when a reigned iffue
is ordered in a civil aftion, none ought to be
paid, when a feigned iffue is ordered in a
criminal proceeding ; becaufe neither party
is entitled to cofts in a criminal proceed-
ing: But in the cafe of Still v. Rogers j
wherein a feigned iffue was ordered in a
criminal proceeding, it was holden, that cofts
ought to follow the verdift. This cafe is
mentioned in i Lilly*s Abr. 447. as of the
firft year of Queen Anne ; but, upon fearch-
ing in the crown office, it is found to have
been in the third year of that Queen. From
a note I have of this cafe, it appears ; that,
although cofts were not mentioned in the
rule for the feigned iffue, the determination
of the Court of King's Bench was, that cofts
ought to follow the verdid ; and it was faid
by Holt Ch. J. that where a feigned iffue is
fent by a court of equity to be tried in a court
of law, cofts do not follow the verdift ; be-
caufe the matter goes back for the confidera-
tion of the court of equity : But that where
a feigned iffue is ordered by a court of law,
cofts ought always to follow the verdift.
Rex verf. The Juftices of the Peace of
the Corporation of Rye.
UPON a motion for a rule to fliew Aninforma-
caufe, why an information fliould not ^gramed^^a-
be^led againft the defendants for a mifdemea- gainft a jdflice
nor, in mfchargii^au appeal to a Poor's rate, of the peace,
an aiGdavit was read» Wherein it was fworn \ ^"^^^^^ ^^ ^^^
that the perfon appealing was ovcr-rated; ^^^^^^^^^
duit tbcjumces wcr^'tbemfcWes undcK-xated v irSX'
^ and
26 Eafter Term 25 Geo. 2. 1752.
and that although very ftrong evidence of both
thefe fails was given at the quarter feffions, the
juftices difchargecl the appeal, and refufed to
make a fpecial order. It was, moreover faid,
that if the court fhould not make a rule to
{hew caufe, upon which the truth of the fafts
^ alledged in the affidavit may be put into a
method of trial, there would be a failure of
juftice, the determination upon the appeal
being final.
The court refufed to make a rule to fliew
caufe.
And by Lee Ch. J. — It is the fettled prac-
tice of this court, never to grant an infor-
mation for any thing done by a juftice of the
peace in the execution of his office, unlefs
the court be fatisfied, that he aded from a
corrupt or partial motive. If there fhould be
a failure of juftice in the prefent cafe, it vrill
be owing to the aft of parliament ; by which
an appeal to a Poor's rate in a corporation is
given to the quarter feffions of the corpora-
tion. This, as the juftices of the corpora-
tion are frequently interefted in the matter in
queftion ; and their determination is final,
may be a reafon for altering law ? But it is
by no means proper, to make a rule to fliew
caufe in the prefent cafe ; in as much as the
making of fuch a rule would amount to a pre-
judication of this court, that the juftices have
aded from a corrupt or partial motive. There
is, perhaps, reafon to fufpeft the defendants
of having afted from a partial motive : But
it is by no means certain, that they have done
fo, even if the fafts alledged in the affidavit
are true ; for the matter in queftion might
appear in different lights to the judgments
of different perfons. Upon the whole j this
this does not appear a cafe proper for an in-
formation agaiiift juftices or the peace ; and
if it be not, it would be vcr^ Vcwpoxj^x 10
make a rule to ftiew caufe.. ts\«d^ tw \\i^
Eafter Term 25 Geo. 2. 1752. 27
fake of bringing juftices of the peace before
the court, that the truth of fafts alledged in
the affidavit may be put into a method of
trial.
Rex verf. Jopfon and five others.
UPON a rule to fhew caufe, why the An india-
indiament fliould not be quaflied. it "jJJ'^]^^^"
appeared ; that the charge in the indidlment of thc"peacc*
was, that the defendant, together with many is charged,
other perfons to the jurors unknown, did ought not to
unlawfully affemble themfelves to difturb the ^ qualhcd.
peace ; and that being fo affembled, the de-
fendants with force and arms the mine of
black lead of y. S. did unlawfully break and
enter ; and fixty pounds weight of the black
lead of y. S. did unlawfully carry away.
The rule was difcharged.
And by Lee Ch. J. — -It is always in the dif-
cretion of the court, whether an indiftment
fliall be quaflied, or the defendant be left to
demur, or to move in arreft of judgment.
The indiftment in the prefent cafe, which
contains a charge of a difturbance of the peace,
in confequence of an unlawful aflembly to
difturb the peace, appears to be good ; but,
however, that it may be, it is by no means
proper for the court to quafli fuch an indift-
ment.
Huifli verf. Sheldon.
UPON a rule to fliew caufe, why a new A new trial
trial fliould not be had in an adion of »s not to be
Trover, it appeared from the report of the f^^^^^l ^^^
judge ; that the verdift was for the plaintiff; miftake by a
that Deard, one of the plaintiffs witnefTes, witnefs io
in giving his evidence had iaid, that a filver giving his c-
E 2 milk ^i^«^^^-
28 EaftcF Term 25 Geo. 2. 1752.
milk pot, for the convcrfion of which the
action was brought, had been fold by him to
the plaintiff.
An affidavit was tcad, in which it was
fworn ; that it appeared from a memoran-
dum in DearcTs book; that the milk- pot was
left with him by the plaintiflF, to be paid for
by y. S. and that the miftake of Deard^ in
giving his evidence, was owing to the omit
Son of a fervant, who, in copying from
Beard's book the plain tiflPs account, from
which account Deard had given his evidence,
had omitted to copy the memorandum.
The rule was difcharged.
And by the court — ^It has been faid ; that
if the fadk mentioned in the memorandum
had been proved at the trial, the verdift
would probably have been for the defendant :
But it would be produftive of the moft dan-
gerous confequences, if a verdift Ihould be
fct afide ; becaufe a witnefs has either from
inattention, or from the want of being pre-
pared, made a miftake in giving his evi-
dence.
\ Crozier verf. Storke.
Leave ^lycn T TpQN a motion, for leave to plead
LSalpkai. ^ ^^^^^ P^^' ^^ appeared; that two of
' the pleas were immaterial ; and it was faid ;
that the giving leave to plead thefc two pleas
would anfwer no other end, than putting the
plaintiff to the expence of taking them out,
and demurring to them.
A rule was made for leave to plead the
three pleas.
And
EafterTerm 25 Geo. 2. 175a. 2g
And by Lee Ch. J. — It is not ufual for the
court, upon a motion for leave to plead fe-
veral pleas, to go into the confideration of
the materiality of the pleas, and the doing
thereof would open a door for almoft end-
lefs altercation. Courts were formerly a lit-
tle ftriA, as to the giving leave to plead fe-
veral pleas: But it nas or late (c) years been
the praftice, to give leave to plead any num-
ber of pleas, provided no two of them be in-
coniiftent with each othen
Hallet verf. Hodges.
IN a cafe referved, in an aftion of debt If a l>ood be
upon a bond, it was ftated ; that the pe- to pay money
Baity of the bond was three hundred pounds ; ^y '^^^^u
that it was given for fecuring the payment of ^^ the°firft
one hundred and fifty pounds by inftalments; failure of pay-
namely, of fifty pounds upon the 30th day menu
of November 1750, another fifty pounds up-
on the 30th of March 1751, and the other
fifty pounds upon the 30th day of November
1751 ; that the condition of the bond was,
that upon the payment of the faid fums on
the faid days refpeftively the bond was to be
void, otherwife to remain in force ; that the
two firfl; dayswere paft ; and that neither of
the two firft fums were paid.
The
(c) It may not be improper to obfenre in this phce, that
fer two or three years paft» the court of common pleas has
been ftrid, as to giving leave to plead feveral pleas. It is
not at this day foificient in that court, that the pleas intended
to be pleaded are all material : But the court experts to be
(atisfied of the neceffity to plead feveral pleas, before a rule
St made to Aew caufe, why tbey fliould not be pleaded.
30 ' Eafter Term 25 Geo. 2. 1752.
The queftion was, Whether the a£tion could
be maintained ?
It was holden that it might.
And by Lee Ch. J. — It has been faid; that
the bond, as appears from the condition, was
only to be in force on the failure of paying all
the three fums, the words, or any of them^ not
being inferred in the condition ; and it is in-
ferred, that the prcfent aftion is premature ;
becaufe it was brought before the laft day
of payment was paft : But we are of opinion,
that the prefent aftion is well brought, and
that an aftion might have been brought upon
the failure of paying the firft fum. In the cafe
of Cootev. Howell^ Mich. 18 G. 2. in this*
court, the condition of a bond, to pay mo-
ney by inftalments, was to the fame purport
as the condition of the jirefent bond is ; and
it was in that cafe holden, that an aftion lay
upon the failure of paying the firft fum.
Rex verf. Owen.
A trial at bar A S very few of the perfons upon the
put off: Be- j[\^ pannel for a fpecial jury, for trying an
caufe the per- information at bar, anfwered to their names ;
anncTfort^ and it appeared that they were not fummon-
fpedal jury* ^^j ^^'^ "^^^ ^^ ^^ evening of the day before
were not fum- the day fixed for the trial, the trial was put
moned in oflF.
propertime. ^nd by Lee Ch. J.— If the perfons upon
the pannel for a fpecial jury have not notice
thereof, fuch a fuflSicient time before the trial,
as
Eafter Term 25 Geo. 2. 1752. 31
as that they may be able to appear, the defign
of the party, upon whofe application it was
ordered, to have this caufe tried by a fpecial
jury, will not probably be anfwered; and it
is certain, that the perfons upon the pannel
have not, in the prefent cafe, had fuch no-
tice,
Fojler J. added, that, in his opinion, fix
days notice at the Icaft ought to be given.
Kenrick verf. Taylor.
IN a cafe referved, in an adion upon the The having
cafe, itwasftated; that the plaintiflFhad repaired a pew
alledged in his declaration, that a certain pew " °ot "f^^"*"
o ' r ry to be prov-
in a church was appurtenant to an antient ^d, in an ac-
meffuage; that the plaintiff and other occu- tion againll 2
piers of the meffuage had conftantly fat in ftranger, for
the pew ; and that the defendant, who was a ^^"^ difturb-
mere ftr anger, had difturbed the plaintiff in foym'lnto/'*"
the enjoyment of the pew : But it was further tjje pew.
ftated ; that no evidence was given that the
plaintiff, or any other occupier of the met
fuage, had at any time repaired to the pew,
or that the occupier of the meffuage for the
time being was bound to repair it.
The queftion was, Whether the action could
be maintained?
It was holden, upon great confideration,
that it might.
And by Lee Ch. J.-r-It has been faid ; that
the plaintiff ought not to have alledged, that
he and the other - occupiers of the meffuage
had been ufed to repair the pew ; for that in
the cafe of Dawney v. Dee^ Cro. ya. 605. Trin*
18 ya. 1. an ufage to repair the pew is al-
ledged.
32 Eafter Term 25 Geo. 2. 1752.
Icdged, in an aftion for being difturbed in the
enjoyment thereof: But in the cafe of AJhlej
V. Freckleton^ 3 Lev. 73. Mich. 34 Car^ 2. whicn
was many years fubfequent to this cafe, it was
holden, that if fuch adion be brought againft
the ordinary, in whom prima facie the right
to all the pews in a church is, an ufage to re-
pair the pew muft be alledged : But that if
fuch adion be brought againft a ftranger, it
is fufficient to alledge a pofleflion of the pew.
It has been faid ; that if it were neceflary
for the plaintiff" to alledge, that he and the
other occupiers of the meffuage had been ufed
to repair the pew, it was neceflary for him to
prove, that he and they had been ufed to re-
pair it, or at leaft, that the occupier of the
mefluage for the time being was bound to re-
pair it ; and the cafe of Buxton v. Batemarij
1 Sid. 203. Pa/ch. 16 Car. 2. has been cited:
Wherein it was holden, that the want of al-
ledging in fuch adion an ufage to repair the
pew, would be bad upon a demurrer ; and
the reafon^ven, why it is not bad after a
verdift, is, that it fliall after a verdift be in-
tended that the ufage was proved. But in the
cafe already mentioned of AJhley v. Freckleton.
which was fome years fubfequent to this cafe,
it is laid down generally ; that it is fufficient
to alledge a pofleflion of the pew, in an ac-
tion againft a ftranger for being difturbed in
the enjoyment thereof; becaufe the ftranger
is to be confidered as a wrong-doer.
Upon the whole we are of opinion, that
as the prefent aftion is againft a ftranger, it
was not neceflary for the' plaintiff* either to
alledge, or to prove, that he or any other oc-
cupier of the mefluage had at any time re-
paired the pew, or that the occupier of the
meffuage for the time being was bound to re-
pair it.
Grove
Eafter Term 25 Geo. 2. 1752. 33
Grove and Wife vcrf. Hart.
UPON a rule to fliew caufe why the A wife may
judgment fliould not be arrefted in an join with her
aftion upon the cafe, it appeared ; that the ^^u^^'?^^ >°
aftion was brought for flanderous words fpo- fay^ng^flie °^
ken of the wife ; namely, that Jhe keeps a keeps a baw-
bawdy-houfe. dy-houfc.
The queftion was. Whether the wife could
join in an aftioa for thefe words ?
It was holden that Ihe might.
And by Lee Ch. J. — As a wife, as well as
her hulband^ is punifhable for keeping a baw-
dy-houfe, a right of aftion for the Ipeaking
of thde words would have furvived to the
wife ; and confequentiy it was proper for her
to join in the action.
Trinity
34
Trinity Term,
25 & 26 Geo, 2. 1752.
Sir William Lee, Chief Jujlice.
Sir Martin Wright,
Sir Thomas Deniiba
Sir Michael Fofter
^^' 7
iibn, >yujilces.
Rex verf. Simons.
A vcrdiA fet T T P O N a rule to flicw caufe, why a new
afide on ac- U trial fliould not be had in an indiftmcnt,
^!!!l' ™ it appeared from the report of Fojier J- that
btiog contra* . * *i • 1 • i- ^ 1 «
rytothedi- t"C charge m the mdiament was, that the
reaions of the defendant did privily and unlawfully convey
judge in a into thepocketof AJhley the profecutor three
matter of law. d^cats, with a malicious and wicked intent,
falfely to accufe the faid AJhley of having rob-
bed the defendant of the ducats ; that when
the jurors came into court, to give their ver-
dift, they mentioned to the judge a difficulty
they were under, namely, that they were of
opinion, that the defendant did put the du-
cats into AJhlefs pocket, but that they were
alfo of opinion, that he did not do it with
an intent to accufe AJhley of a robbery;
that
Trin. Term 25 & 26 Geo. 2. 1752. 35
that the judge thereupon diredcl the Jury,
that they could not find the defendant guilty
of the faft, without finding him guilty of the
intent, and that they mutt either find him
guilty of both, or acquit him ; that a verdift
was foon after given, which was taken and
entered by the officer, and underftood by the
judge to be a general verdift of guilty ; and
that from the time of the coming of the jurors
into court, to the time of giving the verdift,
there was a great crowd and noife in court.
An affidavit was likewife read, in which it
was fworn by all the jurors ; that there was a
miftake in taking and entering the verdiA ;
that they ha^ agreed to find the defendant
guilty of the fad, but without any evil in-
tention ; that one of them called out aloud,
at the time of giving the verdift, no intent^ no
intent ; and that the crowd and noife in court
were fo great, that they did not hear what
the learned judge faid; when they mentioned
the difficulty they were under.
The rule was made abfolute.
And by Lee Ch. J. — ^I'he court does not fet
afide this verdid, on account of an after-
thought of the jurors ; for it would be a pre-
cedent of a moft dangerous tendency, to fet
afide a verdict on that account : But as it ap-i
pears from the report of the judge, as well as
from the affidavit of the jurors, that they did
not hear, or did not underftand his direclion,
which was, in our opinion, a very proper
one, the verdift ought not to ftand ; becaufe
it is contrary to the diredlion of the judge in
a matter of law. It is very clear, from their
having mentioned the difficulty they were un-
der to the judge, before they gave their ver-
did, and from the calling out of one of them
F 2 at
36 Trin. Term 25 & 26 Geo. 2. 1752.
at the time of giving it, no intent^ no intentj
that the jurors did not mean to find the de-
fendant guilty of the intent ; and if they did
not, they ought, purfuant to the direftion of
the judge, to have acquitted him.
And by Denifon J. — ^If the verdift had been
taken as the jurors intended to give it ; name-
ly, guilty of the faft, but without any evil
intention, it would have been an incompleat
verdift, and confequently, no judgment
could have been given upon it.
Rex verf. The Mayor and Burgefles of
Nottingham. "
A Mandamus A Mandamus had been awarded; whereby,
for reftoring j^A ^^^r reciting, that, for time whereof
to an ofHce ^j^^ memory of man is not to the contrary,
Jh\ nature o7 ^^ere has been, and that there ought to be,
the right to i^ ^^^ town oi Nottingham^ a common-council,
the office. confifting of twenty-four perfons, and that
there are now fix vacancies in the common-
council, the defendants were commanded to
eleft fix perfons to fill up the vacancies.
The return to this Mandamus was ; that
there ought not to be, in the town of Not-
tingham^ a common-council confifting of
twenty-four perfons.
Upon a rule to flxew caufe, why the Man-
damus and the return thereto fliould not be
quaflied ?
It was holden, that neither the Mandamus
nor the return ought to be quaflied.
And
Trinity Term 25 & 26 Geo. 2. 1752. 37
And by Lee Ch. J. — As a ground for quafli«
ing this Mandamus J it has been faid ; that the
nature of the right, to have a common-coun-
cil confiding of twenty-four perfons, is not fet
out with fufficient particularity : But divers
precedents of Mandamus have been produced,
in which the right, to have the thing com-
manded, done, is fet out as generally as it is
in the prefent Mandamus ; and it is certain,
that no precife form is neceffary in a Man-
damns.
As a ground for quafliing the return to this
Mandamus, it has been faid ; that no other
ifTue can be taken thereon, than whether there
ought to be a common-council, in the town
of Nottingham, confifting of twenty-four per-
fons, which, it being rather a queftion of law
than of facl, is more proper for the determi- -
nation of the court than of a Jury : But as
the queftion, whether there ought to be fuch
a common-council, muft depend upon a fad;
namely, whether there has been an ufage in
the town of Nottingham to have fuch a com-
mon-council, it is a queftion proper for the
determination of a jury.
Rex verf. The Mayor and Aldermen of
Doncaften
TO a mandamus, for reftoring John Beale The particu-
to the office of alderman of the borough larcaufeof
of Doncajier ; the return was ; that John Beale ^^"^ ^^"^^7^^
was not refident m the borough at the time j^ ^ corporati-
of his eledHon, but lived at the diftance of on murf be
three miles from thence, and has not fince fliewn, in the
refided in the borough ; that from the day of ^5^"^" ^^ ^
his election, which was on the 9th day «f reftonn"* to ^^
December 1750, to the 26th day pf December the office.
1 75 1, he abfeated himfelf from the borough.
38 Trinity Term 25 & 26 Geo, 2. 1752.
and negle^ed and omitted the duty and exe-
cution of his office; and thereby, during that
time, deprived the mayor and common-coun-
cil of the affiftance and advice, which by the
duty of his office, and obligation of his oath,
he ought to have given ; contrary to the true
intention, direftion and effcft of the charters
of the borough ; to the great hinderance and
delay of the public bufinefs, and of the good
rule and order of the borough ; and to the
great damage, difappointment and prejudice
of the corporation ; that yolm Bcale^ being
prefcnt in a common-council, was charged
with, and accufed of, the non-refidence, non-
attendance, negledl of duty and milbehaviour
aforefaid, and a&ed what he had to fay, why
he fhould not be removed from his office ;
that upon his not denying the charge, nor
offering any thing in his defence, nor defiring
a further day toanfwer, the common-council
removed him from his office, for his non-re-
fidence, non-attendance, negled of duty and
mifbehaviour aforefaid; and that therefore
they cannot reftore him.
This return was, upon great confideration,
hdden to be infufficient ; and a peremptory
mandamus was awarded*
And by Lee Ch. J. — ^It does not appear from
this return ; that a power of removing from
an office for good caufe is veiled in the com-
mon-council. Such a power is, indeed, in-
cidental to every corporation : But it never
can be exercifed by a part of a corporation,
unlefs it is veiled in that part by charter or
prefcription.
If it had appeared from this return ; that a
power of removing from an office for good
caufe is veiled in the common-council, the
caufe returned for the removal of Bca!e is
not
Trinity Term 25 & 26 Geo, 2. 1752. 39
not a good one. As Beale refided fo near the
borough, that he might attend the duty of his
office, and as it does not appear that more
than one common-council, at which he did
attend, was holden whilft he was in the office
of alderman, there was not fuch a total de-
fertion of the duty of his office, as was a good
caufe of removal ; and it would be very
ftrange to hold, that the rcfiding two or three
miles out of the borough, which officers of a
corporation frequently do, is a good caufe of
removal from an office.
In the cafe of Rex v. The Mayor ofNewcaJilej
Mich. 21 G. 2. the officer removed had been
abfent from the corporation twenty-two years,
and refided at the diftance of two hundred
miles from the borough ; which being confi-
dered as a total defertion of the duty of his
office, it was holden to be a good caufe of re-
moving him from his office.
This return is bad for another reafon ;
namely, that it does only charge a general nc-
gleft and omiffion by Beale of the duty of his
office ; whereas it ought to have fliewn the
particular inftances of negleft and omiffion,
that the court might have judged, whether
fuch negledts and omiffions are a good caufe of
renaoval.
In the cafe of Rex v. The Mayor ^ Aldermen
and Burgeffes ofDoncaJler^ Lord Raymond i ^66.
the return to a mandamus for reftoring Scat to
an office was ; that Scot had obftinately, and
voluntarily, refufed to obey fevcral orders
and laws made for the good of the borough,
contrary to the duty of his office. This re-
turn was holden to be infufficient ; becaufe it
did not fliew the particular orders or laws,
which Scot had refufed to obey.
It
40 Trinity Term 25 & 26 Geo. 2. 1752.
It has been faid ; that Beale was incapable
of being elected an alderman, on account of
his non-refidence in the borough at the time
of his election ; and that therefore he ought
not to be reftored : But as he was in faft elect-
ed, it isnot a good return to a mandamus for
reftoring him, to fay that he was incapable of
being elefted. The proper way of trying,
whether he was capable of being elefted, being
in an information in the nature of a quo war-
ranto.
A fenrant is
anfwerable for
a tortious a6t
done for the
benefit of his
matter, al-
though it be
done by the
command of
)kis mailer.
Perkins and Another, Aflignees of Hughes
verf. Smith.
IN a fpecial verdift, in an aftion of trover y
it was ftated ; that the defendant was a
riding clerk to Garraway^ a tradefman ; that
he went to the houfe of Hughes^ in order to
receive fome money due from Hughes to Gar-
raway\ that Hughes^ before the defendant
went to his houfe, had abfconded ; that his
fhop was at that time fhut up, and that he was
afterwards declared a bankrupt ; that after
Hughes had committed an aft of bankruptcy,
but before he was declared a bankrupt, he
delivered certain goods which were in his
houfe to the defendant, who removed the
goods from the houfe of Hughes ^ and fold them
for the ufe of Garraway ; that the defendant
afterwards accounted to the affignees of Gar-^
raway^ who likewife became a bankrupt, for
the money arifing from the fale of the goods ;
and that in all thefe tranfadions the defendant
afted as fervant to Garraway ^ and not other-
wife.
The queftion was. Whether the plainti£f
ought to recover the value pf the goods ?
It
Trinity Term 25 & 26 Geo. 2. 1752. 41
It was holden, upon great confideration^
that they ought.
And by Lee Ch. J.— As the property in the
goods was, upon Hughes's being declared a
bankrupt, veiled in the affignees from the
time of his committing the act of bankruptcy,
the delivery of them to the defendant was a
mere nugatory aA. It is equally a converfion,
to fell the goods of another perfon, which
have been delivered to the feller by one not
having a lawful authority to deliver them, as
it is to take the goods of the other perfon and
fell them ; and it makes no difference, that
the goods are, in fuch cafe, fold for the be-
nefit of a third perfon ; the owner being as
much deprived of his goods, as if they had
been fold for the benefit of the feller.
It'has been laid ; that as the verdid finds,
that the defendant in all the tranfadions Hated
zAed as fervant to Garraway^ and not other-
wife, he is not liable to the prefent aftion ;
the remedy of the plaintiffs being againft Gar-
raway or his affigneps ; But it is not found ;
that the fale of the goods, which was certain-
ly a tortious ad, wras by the command gf
Garraway ; and if it had beei^ fo found, the
defendant would be neverthelds liable to the
prefent adlion.
If a fervant, by the command of his mafter,
do a tortious ad, the piafter is certainly lia-
ble to an adion : But as the command of a
mafter does neither juftify nor excufe his .
fervant in doing a tortious aft, the fervant is
alfo liable. In the cafe of Michael v. Alejlree
and another^ 2 Lev. 172. which was an action
againft a fervant and his mafter, for an injury
4one by the fe^ryant's driving a pair of unruly
Q CQaca
44 Trinity Term 25 & 26 Geo. 2. 175a.
And it was added thereto, by order of the
court ; that the defendant fliould have leave to
imparle, until there is a determination upon
the writ of error.
Rex verf Qjllyer and Capon.
Apcrfonmav 'T'HE defendants being brought up by a
be difchargcd X Habeas Corpus, it appeared ; that they
MCoHJsfrom ^'^^ committed by an order of a court of
imprifonment quarter feflions, holden at Hicis*s Hall ; and
under an ille- that in the commitment there were the fol-
gal judgment, lowing words : " William Collyer znd Edmund
'* Capon, being convifted upon an indictment
" for affaulting Thomas Smith, Efq; are com-
" mitted to New Prijon, Clerkenwell, for the
" fpace of one month next enfuing ; and to
^* alk pardon upon their knees of the faid
" Thomas Smith, at the place where the of-
*' fence was committed ; and to caufe an ac-
" count of the faid fentence to be printed in
*' the Daily Advertifer ; and not to be dif-
'' charged out of prifon, until they have un-
" dergone fuch imprifonment, afked fuch
" pardon, and caufed fuch account to be pub-
" liflied ; and when difchargcd, to pay their
*^ fees feverally, one pound, one fliilling and
" eight pence.''
A rule was made for the difcharge of the
defendants.
And by the court — ^Every part of this
judgment is illegal, except the imprifonment.
It has been faid ; that the proper way for the
defendants to be relieved againft any part of
this judgment, is by a writ of error : But
it would be very hard ; that the defendants
fiiould continue in prifon under the illegal
parts of this judgment, until they can obtain
a rcverfal of thole parts upon a writ of error.
Commins
Trinity Term 25 & 26 Geo. 2. 1752. 45
Commins verf. The Mayor and Burgefles
of Oakhampton,
UPON a rule to fhew caufe, why a new A father is an
trial fliould not be had in an adion up- admifEble wit-
on the cafe, it appeared; that the aftion was, ncfttoprovca
for refofing to admit the pMntifFto the free, -^rhut"
domof the corporation of Oakhampton\ that claims the
at the trial of the caufe the chief queftion was, freedom of a
whether there was a certain cuftom in the corporation.
borough, under which the plaintiff claimed a
right of being admitted ? And that the father
of the plaintiff, who had obtained his freedom
by fervitude, was not admitted to prove this
cuftom. .
The queftion was. Whether the father 'was
an admiflible witne& to prove this cuftom ?
It was holden that he was.
And by Lee Ch. J. — Theperfon, to whom
the remainder of an eftate is, after the deter-
mination of a particular eftate;^ limited by a
will, cannot be admitted to prove the will ;
becaufe he has, although it be remote, a veft-
ed intereft in the matter in queftion : But it
has been always holden ; that the fon of tlie
perfon, to whom a particular eftate is devifed
by a will, may be admitted to prove the will ;
becaufe, although he may be under a bias, he
has not a vefted intereft in the matter in quef-
tion. Mere relationfhip, how near foevcr the
relation may be, does not go to the compe-
tency of a witnefs, unlefs there be a vefted in-
tereft in the matter in V^ueftion. The bias,
which a father is prefumed to be under in giv-
ing teftimony in favour of his fon, does cer-
tainly go to his credit : But a father is, in all
cafes, a competent witnefs for his fon, if he
'' have
40
Trinity Term 25 & 26 Geo. 2. 1752.
An abfolutc rule was made for an attach-
ment.
AviiXhyLee Ch. J. — ^Therearetwo cafes, in
which the court does always make a rule for an
attachment, without making a rule to ihew
caufe; namely, for non-payment of cofls
which have been taxed, and for fpeaking dif-
refpcctful words of the court.
Watkins verf. Hybert.
The changing
of the Fenue
from an Eng-
njbv^^ Welch
county re-
fufcd.
A Motion was made to change the Venue^
in an action of aflault and battery, from
the county gf Middle/ex to the county of
Brecknock.
The court refufed to make a rule to fhcw
caufe.
And by Lee Ch. J. — ^It has been faid ; that
rule, for changing the Venue from an Englijh
to a Welch county, was made in the cafe of
Price V. Griffith j Trin. 2i £s^ 22 G. 2. and that
another rule of the fame kind was made In
the cafe of Smith v. Jones^ Eaji. 23 G. 2. But
if fuch a rule has ever been made, it muft have
beenbyfurprize.
Mr. lord^ as Amicus Curia^ mentioned the
cafe of Moor V. Fernihaugh^ Trin. 19 G. 2. in
which this court, after taking time to confider,
refufed to make a rule for changing the Vent^
from an Englijh to a Welch county.
Wicker
Trinity Term 25 & 26 Geo. 2. 1752. 49
Wicker vtrf. WoodhalL
UPON a rule toflicwcaUfe, why the pro- A declaration
ccedings fliould not be fet ;ifidc for ir- ^^^ *
regularity; and why the defendant fhoidd bad^°i^idi»
not be difcharged out of prifon, it appeai^ed; (nil has been
that at the time of delivering the declaration, filed,
which was delivered to' the defendant in
prifon, a bill was not filed.
The rule was made abfolute.
And by the court — ^A declaration againft a
defendant at large is good, although a bill has
not been filed j becaufe, if the bringing of
writ of error, or any other reafon, make the
filing of a bill ^eceilary, on.e may be filed at
any time : But a declaration againfl: a defen-
dant in prifon is bad, unlef^. a bill has been
. filed, before it was delivered.
. Annftrong on the D^mife of Wamhoufe
t><f/: Thnjftout.
UPON a rule to fliew caufe, whyjudg- The notice ta
ment fhould not be entered againil the appear to an
cafual ejeftor, it appeared; that the declara- aaionofE-
tion was of laftH/A/ry term : and that the no- h^c°*»
<> ^ i • ^1. * r ^ muftbe to
tice to appear was, to appear m the prefent appearinthe
term. next term t6
The rule was difcharged. that of which
And by Lee Ch. J.— It has been faid ; that thedcdara-
fuch a notice to appear, as has been given in ^^^ "'
the prefent cafe, would be good in the court
of Common Pleas : But, however that may
be, it is the fettled pradice of this court,
H that
52 Trinity Term 25 & 26 Geo. 2. 1752.
The queftion was, Whether a writ of error
be ^fuperfedeas to a fcire facias upon a judg-
ment, before bail is put in ?
It was holden that it is.
And by the court — ^Upon the deKvery of a
writ of error to the clerk of the errors, it be-
comes 2,fuperfedeas to ^, fcire facias upon a judg-
ment ; and it continues to be fo for the fpace
of four days after the allowance of the writ;
after which time, if the plaintiff in error has
neglefted to put in bail, it ceafes to be ^.fupir^
• fedeas.
Michaebnas
53
Michaelmas Term,
26 Geo. 3. 1752.
Sir WiUiam Lcc, Chief Juiice.
Sir Martin Wright, 1
Sir Thomas Denifon, \jtiftlces.
Sir Michael Fofter, J
Emmerfon verf. Hafkins.
UP O N a rule to flicw caufe, why the
defendant Ihould not, upon filing com- f " ^^?^\'
, ., , j»ri J *. r FLA -^ to explain the
mon bail, be diicharged out of cuftody, it affidayit for
appeared ; that in the affidavit of the plain- holding to
tiff, upon which the defendant had been hoi- fpedal bail,
den to fpecial bail, it was fworn ; that the ^J^ Pf!
defendant was indebted to the plaintiff in the ^^^ ^°
fum of one hundred pounds, for converting
and difpofing of divers goods, the property
of the plaintiff, to his own ufe.
On the part of the defendant, an affidavit
was offered, wherein it was fworn ; that the
defendant, who was a cuftom-houfe officer,
had feifed the goods xncntioncd in the plaintiff's
^davit,
54 Michaelmas Term 26 Geo. 2. 1752.
afEdavit, as being prohibited goods ; and
that the eoods were depofited in the. .king's
warehouiS, from whence they could not be
had without a writ of delivery.
The court would not permit the affidavit
to be read ; and the rule was difcharge^*
And by Lee Ch. J. — ^It hsks beei^i^d ; that
the court of common pleas did in two in«
fiances allow affidavits to be read, to explain
the affidavits for holding to fpecial bail } aOid,
in confequcnce of the explanatory affidavits,
did difcharge the defendants out of cuftodVy
upon entering common appearances^ notwith-
ftanding the affidavits of the plaintiffii were
poiitive to debts of ten pounds : But what-
ever may have been done by that court, it has
been the conftant practice of this court, ever
fince the flatute, by which an affidavit of
debt of ten pounds is required, in order to
hold to fpecial bail» not to permit any affi*
davit to be read, dither to contradift or ex*
plain the affidavit of the debt ; and it is by no
means proper, for the court to dq^art from
its conftant practice, although the adhering to
it Ihould, in the prefent cafe, be attended with
fome inconvenience to the defendant.
Griffith verf. Walker.
The f^ffrtir
an adion a-
m T N the declaration, in an action upon the
7i /u XT -*• ^^^^» againft the flieriff of the county of
k^r a fal&re. Radnor, ^ for a felfe return to a writ of Scire
turn, may be Fociosy itwas allcd^d J that the writ was de.
laid out of livered to the fhenff at King^n in Hereford^
t^^/^ouaty of jhire, who then and thgre returned ; that he
SSit U £". ^^^ made known, i^c. and the Venue was laid
^^ in the coypty of Hereford.
Upon
Michaelmas Term 26 Geo* 2. 1752. 55
Upon a demurer to this declaration, tl|e
tfueftioa was. Whether, as this a&ion is for a
nlfe return by the iheriff of Radnor/hire^ the
Venue covAd be laid in any ether county than
that of Radnor.
It was holden that it might.
And -by I^^ Ch- J. — ^It \m becin faid; that
» the office of iheriflFis local, every ad done
by a man, as fheriff, muft be done in the coua-
ty whereof he is iheriff: But this is a mifiake*
A iheriff cannot do a compulfory ad out of
the county whereof he is iheriff : But he may
make a return to a writ, or do any acl which
is not coa^>ulfory, out of that county. It
appears from the caie of Gregfon v. Heather ^
Lord Raym. 1455- that the alHgnment of a
bail bond, it being a tranfitory acl, may be
made by a iheriff out of the county whereof
he is iheriff; and it was in that cafe holden ;
that the Venue^ in an action upon the bail bond,
, was well laid in the county wherein the biul
bond was ai&gned.
R has been £iid; that in the cafe of Rex v«
The mayor of Orford^ the court refufed to
diange Hizyenue^ in an aflion againft the ihe-
riff of Suffolk for a falfe return to a Mandamus^
. from the county of Suffolk to another county :
But the court did not in that cafe refufe to
' change t;j[ie ^Vefiuej becaufe the iheriff could
• not make a return to the Mandamus out of his
. county; but becaufe the Venue was very pro-
perly laid in the county of Suffolk^ in which
county the return was, in fad, made.
In the prcfent cafe, as the return is alledged
. to have been made, and muft be proved to
have
S6
Michaelmas Term 26 Geo. 2. i75ft»
have been made, in the county of Hereford;
the queflion, whether the return be falfe,
ought to be tried in that county ; it being a
maxim of law, that ibi femper debit fieri tria^
tioj ubi Juratores meliorem habere poffimt Noti-
tiam.
If there had been a motion in the prefent
cafe, to change the Venue from the county of
Hereford to the county of Radnor j the court
woi:dd not have made a rule for changing it:
In cafe the plaintiff would have undertaken
to give material evidence in the county of
Hereford ; which, as the delivery of the writ,
and the making of the return, were both in
that county, he might very wdl have done.
Griffith verf. Williams.
If mutual ac-
tions will lie
for the breach
of two cuf-
toms, one cuf-
torn is not to
be confidered
as parcel of
the other.
IN an a£Uon of Trejpafs^ for taking three
gold rings, the defendant pleaded a ciif-
tom, for the corporation oiOfweJlry to keep
the bulwarks and prifons of the borough of
Ofwejiry in repair; andlikewife acuftom, for
the corporation to receive, in confideration
thereof, from every inhabitant of the bo-
rough not bein^ aburgefs, a duty not exceed-
ing twenty fliiUings, called Tawdry ; and
that he, as fervant to the corporation, took
the three rings, as a diftrefs for the non*pay«
ment of this duty.
The plain tiflF iii his replication, traverfed
the cufliom of paying the duty ; but did not
give any anfwer as to the cuftom of keeping
the bulwarks and prifon? in repair.
Upon a demurrer to this replication, it
was holden to be good.
And
Michaelmas Term 26 Geo. 2. 1752. 57
And by Lee Ch. J. — Some objeftions have
b^en madie to the defendant's plea, which feem
to have weight in them : But as we are of
opinion, that the replication is good, it is not
ncceffary to give any. opinion as to the good-
nefs of the plea.
It has been faid, that, as the cuftom to pay
the duty, called Tanejlry^ is alledged to be in
confideration of keeping the bulwarks and
prifons in repair, the cuftom to repair the
bulwarks and prifons, and the cuftom to pay
this duty, are to be confidered as one entire
cuftom ; and if they are to be fo confidered,
that the plaintiff ought to have traverfed that
part of the cuftom which relates to the re-
pairs, as well as that part which relates to
the payment of the duty. But we are of opi-
nion ; that the cuftom to keep the bulwarks
and prifons in repair, and the cuftom to pay
the duty, are to be confidered as two diftind
cuftoms ; inafmuch as there are two dittinft
duties; namely, a duty upon the corpora^
tionto keep the bulwarks and prifons in repair,
and a duty upon the inhabitants to pay the
duty; that for the breach of thefe two cuf*
toms the corporation and the inhabitants have
mutual remedies ; and confequently, that it
is not neceffary for the perfon, who traverfes
one cuftom, to take any notice of the other.
In the cafe of Harbin v. Green^ Hob. 189,
a cuftom was alledged ; for all the inhabitants
of a city to grind their corn at the mill of
y. S. and another cuftom, that in confide-
ration thereof, J. S. was obliged to grind all
the corn of the inhabitants. It was holden ;
that thefe are two diftinct cuftoms for the
breach of which mutual actions will lie. In
Gray's cafe, 5 Rep. 78. it is laid down gene-
I rally ;
58 Michaelmas Term 26 Geo. 2. 1752.
rally ; that where there are mutual remedies
for the breach of two cuftoms, one cuftomis
to be confidered as parcel of the other ; but
they are to be confidered as diftinft cuftoms.
It is likewife laid down in this cafe ; that it
is not neceffary for the perfon, who would
avail himfelf in pleading of one of two dif-
tinft cuftoms, for the breach of which mu-
tual actions will lie, to take any notice of the
other cuftom.
Tubb vcrf. Tubb.
Ifapcrfbn, TTPON a rule to fhew caufe, why the
excepted to as U name of "John Dighton fhould not be
bail do not Jul- ftncken out of a recognizance, it appeared ;
mav'be ft"dck! ^^^^ ^^^^ recognizance was entered into by
en out of the Dighton and J. S. as bail in a writ of error ;
recognizance, that Dighton being excepted to, and unable to
juftify, another perfon was added as bail,
who did juftify ; that the judgment in the
original aftion was affirmed ; and that the
perfon added as bail and J. S. being both in-
folvent, the defendant in error had brought
an aftion upon the recognizance againft Digb-^
ion.
The rule was made abfolute.
And by Lee Ch. J. — After the defendant in
error had excepted to Dighton^ and another
perfon was added as bail, who did juftify,
the recognizance, as to Dighton^ was at an
end. If Dighton had applied before this ac-
tion was brought againft him, to have his
name ftricken out of the recognizance, the
court would certainly have ordered it to be
done; and it is equally reafonable, that it
il^ould be now done.
Daubuz
Michaelmas Term 26 Geo. 2. 1752. 59
Daubuz verf. Penden
A Motion being made, for leave to amend The TV^i-
the Tranfcript of a judgment of an in- y^«>'ofajudg-
ferior court, by the record of the judgment ; ^^"^^^^^00^^^
and It being faid, that a rule giving fuch leave, may "^be^^a^
had been made in the cafe of ReadY. Charnley^ mended.
Mich. 4. Ann. the court ordered a fearch to
be made for that rule.
By the rule made in the cafe of Read v.
Chamley^ which was at another day produced,
it was ordered ; that the matter be referred
to the mafter, and that he, in the prefence of
the attori^ies of both parties, do amend the
Tranfcript of the record to the writ of error
annexed, according to the feveral proceed-
ings had in the inferior court, to be produced
before him by the parties.
A fimilar rule was made in the prefent cafe.
Kelly verf. Devereux.
UPON a rule to fliew caufe, why com- ^n affidavit
mon bail mould not be accepted, it ap- for holding to
peared ; that the plaintiff, who refided at Ca- fpecial bail
dizj had fent a letter of attorney to J. S. rauftbepofi-
whereby J. S. was impowered to receive, ^*^^ ^^ ^ ^^^^
and, if neceffary, to fue for, a fum of mo-
ney due from the defendant to the plaintiff;
that the defendant had been holden to fpecial
bail upon an affidavit of J. S. in which it
was fworn ; that the defendant is indebted
to the plaintiff in the fum of fifty pounds, as
appears to this deponent, by the confefGon of
the defendant, and by his promife to pay the
£une t6 this deponent.
1 2 The
6o Michaelmas Term 26 Geo. 2. 1752.
The rule was made abfolute.
And by Lee Ch. J. — It is a fettled point ;
that the afEdavit for holding to fpccial bail
muft, without any reference, bepofitive tea
debt of ten pounds.
Adcock qui tarn verf. Gill.
IN an aftion qui tarriy for exercifing the
trade of a worfted \yeaver, in the city of
Norwich^ contrary to the 13 Sff 14 Ch. 2. c. 5.
there was a fpecial verdidl.
After this verdiA had been argued once
upon the merits, Denifon J. defircd ; that it
fnight, at the next argument, be conlidered,
whether the 13, Sff 14 Ch. 2 Jr. 5. which was
made for regulating the manufaAure of fluffs
in the city of Norwich and in the county of
Norfolk^ be not a private ftatute, of which,
as it is not in the prefent cafe pleaded, the
judges cannot take notice ; and he mentioned
the cafe of Rex v. Wild^ 2 Keb. 686. in which
it was agreed by the court, that this ftatute is
a private ftatute. ^
At the day upon which the verdict was to
have been argued a fecond time, it was ad-
mitted; that the objeftion of Mr. Juftice De-
nifon^ as fupportcd by the cafe of Rex v. Wild^
was too ftrong to be got over ; and confe-
quently that judgment muft be entered for
the defendant.
Rex
u
Michaelmas Term a6 Geo. 2. 1752. 61
KeX/verf. Rook.
P O N a rule to fliew caufe, why an or- A married
der of baftardy, made by two juftices, Jj^oman cannot
fliould not be quafhed, one objcftion was; J^^^'«fe<*»
^i- -. ^1- \. J- j« ^'-^ ' ^1. P*^°^« that her
that there was not an adjudication in the or- hufbandhad
der, that the child was born in the parifli, for not accefs to
the relief of which the order was made. ^i^r-
This objedlion was over-ruled.
And by the court — ^It muft appear in an or-
der of baftardy ; that the child was born in
the parifli, for the relief of which the order
is made, otherwife the order is bad for want
of jurifdiftion in the juftices : But it has been
holden frequently, and amongft other cafes,
in the cafe of Rex v. Moravia^ Eaji. 15 G. 2.
that if it can be fairly collefted, from an or-
der of baftardy, that the child was born in
the parifli, it is fufficient ; an exprefe adjudi-
cation thereof not being neceffary. In the
prefent cafe, there is a recital in the order,
that the child was born in the parifli, which
is Certainly fufficient.
Aflother objcftion was ; that the mother of
the child, a married woman, was the only
witnefs to prove, that her hufl3and had no
acCefs to her. This objection was holden to
be good, and the rule was made abfolute.
And by the court — According to the old
cafes, a child born of a married woman could
not be a baftard, if her huftDand were, dur-
ing the time of her pregnancy, within the
four feas : But it is at this day a fettled
point \ that fuch a child may be a baftard,
notwiXix-
62 Michaelmas Term 26 Geo. 2. 1752.
notwithftanding the hufband was, during the
time of his wife's pregnancy, within the four
feas, if it appear, that he had no accefs to
her.
But it is likewife a fettled point ; that the
wife cannot be admitted to prove, that her
hufband had no accefs to her. Before the cafe
of Rex V. Redding^ which was Mich. 8 G. 2.
it was doubted ; whether a married woman
could be admitted to prove, that a child born
of her body was begotten by any other man
than her hufband ; inafmuch as the tendency
of the evidence was to baflardize her child.
It was in this cafe holden ; that a married wo-
man may, ex necejfitate^ be admitted to prove
this ; which can very feldom, if ever, be
proved by any other perfon : But it was like-
wife holden ; that a married woman cannot
be admitted to prove, that her hufband had
no accefs to her ; becaufe this may frequently
be proved by another perfon.
Wood verf. Lord Biron.
The Tep of a T T P O N a rule to fhew caufe, why the
Dijlringas U Tejie of a Di/iringas fliould not be a-
"^^^d'db al "^^^^^^» '^y altering the date thereof, it ap-
xe^ngxhJ ' peared ; that the Dijiringas bore TeJie upon
date. the 29th day of May ; and that the Venire
Facias^ upon which it was founded, was not
returnable until the 31ft day of the fame
month.
The rule was made abfolute.
And by Lee Ch. J. — It has been faid ; that
the Di/iringas^ as it now ftands, is a perfeft
writ ; and that altering the date of the TeJie
would amount to the making of a new writ :
But there is no weight in this objeftion. The
miftake in the date of the TeJie of the Dj/C
trin^as^
Michaelmas Term 26 Geo. 2. 1752. g^
tringas is a mere vitiam Clerici ; for as the offi-
cer, by whom it was made out, had the Venire
Facias before him, it was his duty to make it
bear Tejie on a day fubfequent to the return
of the Venire Facias. In the cafe of Nevil v.
Bates J Teh. 64. it was holden ; that both the
Te/ie of a Venire Facias j and the Te^e of a
Dijiringas founded thereupon, might be a-
mended.
Hayley verf. Qrant
UP O N a rule to fliew caufe, why the trial The trial of a
of a caufe fliould not be put off, it ap- caufe put off,
peared ; that the attorney for the defendant ^e^aufc the
was fo ill, as not to be able to attend the SrdelndLt
trial- ^Ji\i!^
The rule was made abfolute.
And by Lee Ch. J, — It has been faid ; that
there is no inftance of a trial being put off, on
account of the illnefs of the attorney for one
of the parties : But, whether there be fuch
an inftance or not, it would be contrary to
natural juftice ; that a party fliould be com-
pelled to have his caufe tried, when the attor-
ney, who has all along had the management
thereof, is prevented by ficknefs from attend-'
ing the trial.
Say verf. Lord Biron,
UP O N a rule to fliew caufe, why the A fait agamft
proceedings againft the defendant, who * P^^^ may be
was a peer, fliould not be fet afide, it appear- ty'bS^"^^
;d i that the fuit was commenced by bill*
The
64 Michaelmas Term 26 Geo. 2. 1752.
The queftion being, whether a fuit could
be commenced againft a peer by bill ? It was
referred to the mafter, in order to have bis
report as to the pradice of the court. The
matter reported ; that it had for many years
been the pradice of the court, to commence
a fuit againft a peer by bill, and to declare
againft him, not as being in the cuftody of
the marflial: But, which is done in the pre-:
fent cafe, as having privilege of parliament.
The rule was difcharged.
And by Lee Ch. J. — It has been faid ; that
as the i2£ffi3Rr. 3. ^. 3. by which ftatute li-
berty is given of commencing a fuit by bill,
againft perfons having privilege of parliament,
does only mention Knights^ Citizens and Butt
gejfes expreffly^ the fubfequent words, or any
other per/on having privilege of Parliament^ do
not extend to a peer: Becaufe a peer is a per-
fon of rank fuperior to all the perfons, who
are eiprefely mentioned : But we are of opi-
nion ; that the pradice of the court, which
has for many years been eftabliflied, is found-
ed upon a very right conftruftion of the fta-
tute, and that it ought to be adhered to.
Jones qui tam verf. Biftiop,
In an aaion T T P O N a motion in arreft of judgment,
tor expofing a \^ \x. appeared ; that the adion was for the
•^Tfuffidint P^^^^^y ^^ fi^^ pounds given by the 9 Ann.
to alledge, ^* ^5* ^^ expojing a hare to fale ; and that the
that the defen- allegation in the declaration was ; that the
danthadahare defendant, not being a perfon qualified in
inhispofTef. j^jg ^^^ right to kill game, nor being enti-
tled thereto, under any perfon fo qualified,
had a hare in his poffeffiop.
The
: .vk; ?7- '-. --vTjrrixrR ■:7^'F»ttV'-
TT-Tf I- I
Michlelihas Term 16 Geo* 2. 1752. 6^
the queftion was, Whether this be a fuffi-
cient allegation of the offence for which the
penalty is given?
It was holden that it is.
And by Lee Ch. J. — ^It has been faid ; that
although evidence of the defendant's having
had a hare in his pofTelfion, would have been
evidence of his expofing a hare to fale ; yet,
as the oflFence created by the ftatute is expojing
a hare to fale j it ought to have been alledged,
that the defendant did expofeahare to fale: but
we are of opinion, that the allegation is fuf-
ficient ; it being enafted, by the fecond para-
graph of the ftatute, " that if a hare Ihall be
** found in the poiTeffion of any perfon what-
*' foever, not qualified to kill game in his
** own right, nor intitled thereto under fomc
*' perfon fo qualified, the fame Ihall be ad-
*' judged, deemed and taken to be an ex-
*' pofing thereof to fale, within the true
♦* intent and meaning of this aft,"
Rex verf. Sheppard.
A Motion being made, upon the laft day ^ motion 10
of this term, to quafh the indidment quafhanin-
againft the defendant ; Lee Ch. J. had at firft diaraent may
fomc doubt, whether a motion to quafli an 1*^^'^^^^^^^''^^
indiAment could be made upon the laft day of \ \^^^^ ^^ °
a term : But the court being informed by the
fecondary of the crown ofiice, that motions to
quafli indiftments had frequently been made
upon the laft days of term, a rule to fliew
caufe was made.
K Tlie
.-*'^. .■• v.r.*
•■" ■ *• ':f*"7 ^<5*''*^**V***''--^-iTO
66 Michaelmas Term 26 Geo. 2. 1752.
The fecondary did, at the fame time, in-
form the court, that motions to qualh orders
offeflions, or orders ofjuftices of the peace,
had not been allowed to be made upon the laft
days of terms.
Hilary
^1
Hilary Term,
26 Geo. 2. 1753*
Sir William Lee, Chief Juftice.
ufon, V Jujlic
er, J
Sir Martin Wright,
Sir Thomas Denifon, J- yu/iices.
Sir Michael Fofter,
Goodlittle on the Demife of Hord verf.
Stokes.
IN a cafe referved in an aflion of ejeamcnt it ^ tcnantcy
was ftated ; that A. B. being feifed in fee \^ common is
of the premifes in queftion, conveyed them by created by the
leafe and releafe to truftees, to the ufe of him- words equally
felf and C. D. his wife for life, and after the [^^^^J^^^^^^
deceafe of the longer liver of them, to the ufe Jj-^^^
of all and every the children of J. S. on the
body of the faid C. D. begotten and to be be-
gotten, and the heirs and affigns of fuch chil-
dren, equally to be divided amongft them ;
and that A. B. who furvived the faid C. D. is
dead, and has left two children begotten upon
the body of the faid C. D.
K 2 The
•^•^
68 Hilary Term 26 Geo. 2. 1753.
The qucftion was, Whether the two chil-
dren took as tenants in common, or as joint
tenants ?
It was holden ; that they took as tenants
in common.
And by Lee Ch. J. — ^It has been for
fomc time a fettled point, that if a de-
vife be to two, equally to be divided
betwixt them, they take as tenants in com-
mon.
It has been obferved ; that the inten-
tion of the grantor is not fo much to be
regarded in the conftrudlion of a deed at
the common law, as the intention of the
teftator is in the conftruftion of a will : But
this obfervation, fuppofing it to be Well
founded, does not apply to the prefent cafe,
in which the queftion arifes upon a deed
to ufes, and not upon a deed at the common
law.
In the cafe of Leigh v. Brace^ Carfh. 343.
it is laid down ; that as much regard is to be
had to the intention of the grantor in con-
ftruing a conveyance to ufes, as in conftruing
a \^ill ; for that the li^me ftridnefs is not re-
quired in the conftrijftion of a conveyance to
ufes, as in the conftrudion of a conveyance
5it jthe common law.
In the cafe of Fijher y. Wegg^ Lord Raym.
622. it was holden by the opinion of Turtqn
J. and Gould J. that if a man furrender a
copyhold eftate to the ufe of ^. B. C. and D.
his children, equally to be divided amongft
theim and their refpediye heirs and afljgns for
ever, the children take as tenants in common.
It
Hilary Term 26 Geo. 2. 1753. ^9
It has been truly fiud, that Holt Ch. J. did in
this cafe diflFer in opinion from Gould and
Turton : But the difference did not confift,
in his being of opinion, that the intention of
the grantor is not to be regarded in the con-
ftruoion of a deed to ufes ; but in his being
of opinion, that a furrender of a copyhold
eftate ought to be conftrued in the fame man-
ner as a grant at the common law.
In the cafe of Rigden v. Vallier^ March 25,
1 75 1, in the court of Chancery, it appeared ;
that y. S. had executed a deed, in which
were the following words, " In confideration
** of natural love and affeftion to my wife
** and two daughters, and for the fettling and
*' affuring all my real and perfonal eftate
*' upon them, I give, grant and confirm unto
** my two daughters the rents and profits of
** my eftate, during the life of my wife,
*' equally to be divided between them, pay-
*' ing five pounds a year to my wife, my faid
** two daughters to have the faid eftate to
*' them and their heirs for ever, equally to
** be divided between them/' That the wife
died during the life of J. S. and that the two
daughters both furvived J. S.
The decree in this cafe was, that the two
daughters took as tenants in common, and by
Lord Hardwicke^ Chancellor ; as the eftate
thereby created was to take effeft infuturo^ and
there was no livery, this deed cannot operate
as a grant at the common law : Becaufe no
eftate of freehold, to commence m/w/wr^?, can
be created by grant at the common law, un-
le(s there be livery. As the eftate thereby
granted, was not to take effect until the death
of the grantor, this deed may, perhaps, ope-
rate as a teftamentary fchedule } and, if it
may.
70 Hilary Term 26 Geo. 2. 1753.
may, there is no room for doubt, that the
intention of the teftator is to be regarded in
^the conftniftion thereof. If this deed do not
operate as a teftamentary fchedule, it muft
operate as a covenant to ftand feifed ; the con-
fideration therein expreffed being natural love
\ and affeftion ; which is not a good coniidera-
^ tion in any other deed than a covenant to
ftand feifed. If it do operate as a covenant
to ftand feifed, it is a ftronger cafe for hold-
ing that the intention of the grantor ought to
be regarded in conftruing it, than the cafe of
Fijher v. Wegg^ which has been cited and re-
lied upon. It is indeed faid, in Eq. Ca. Ahr.
291. that the judgment in the cale of Fijher
V. We^ was reverfed : But this is a miftake,
for upon a fearch being made by my order it
does not appear, that any writ of error was
brought.
It has been faid ; that as the determination
in the cafe of Fijher v. Wegg was contrary to
the opinion of Holt Ch. J. — that cafe is not
of much authority. The anfwer I fliall give
to this is, that, although I have the greateft
reverence for the opinions of Lord Chief Juf-
tice Holt^ I cannot help faying ; that upon
mature confideration of the arguments in the
cafe of Fijher v. We^^ it appears to me, that
the arguments of the chief juftice are very ar-
tificial and refined : But that thofe of the two
juftices are much more agreeable to natural
reafon. If the intention of J. S. is to be re-
garded in conftruing this deed, the conftruc-
tion of it muft be, that the daughters took as
tenants in common ; for if the conftruftion
fliould be, that they took as joint-tenants, the
intention of J. S. which certainly was to pro-
vide for the heirs of his daughters, as well as
for the daughters themfelves, would not be
anfwered.
It
V.
Hilary Term 26 Geo. 2. 1753. 71
It appears from thefe authorities, that the
intention of the grantor is to be regarded in
the conftruftion of a deed to ufes ; and if this
be fo, there is not in the prefent cafe any
room for doubt ; it being the manifeft inten-
tion of A. B. that the heirs and affigns of all
his children begotten upon the body of C. D.
{hould take, as well as the children themfelves.
In order to eflFeftuate this manifeft intention,
it is neceffary for the court to hold, that the
two children left by A. B. took as tenants in
common ; for if it fliould be holden, that
they took as joint tenants, only the heirs
and affigns of that child which fhould furvivc
could take.
It IS not neceffary, to go further in the pre-
fent cafe, than to determine, that the words
equally to be divided^ in a deed to ufes, do cre-
ate a tenancy in common : But if it were ne-
ceffary, the court would have the fanftion of
a very great man*s opinion for going further.
In the cafe of Rigden v. Vallicr^ which has
been already mentioned, the only point di-
re6Uy in queftion was, whether the words
equally to be divided in a teftamentary fche-
dule, or a covenant to ftand feifed do create a
tenancy in common ; and confequently the
decree could only be as to this point : But it
may be fairly inferred, that, if the cafe had
required it, the decree would have been, that
the fame words, or words of the like import,
in a deed at the common law, do create a te-
nancy in common : For Lord Hardwicke ex-
preffedhimfelf to the following purport: I take
it to have been long fettled, that the words
equa^.ly to be divided, or the word equally,
or the words fhare and fliarc alike, in a will,
do create a tenancy in common ; and I do not
know of any folemn determination, that the
fame
72 Hilary Term 26 Geo. 2. 1753.
fame words, or words of the like import, in
a deed, do not create fuch a tenancy. It is
certain, that no technical words are neceffary
to the creation of a tenancy in common ; and
confequeptly, a greater latitude may be cxer-
cifed in determining, whether fuch a tenancy
be created by the words which are ufed. It
isfaid, I Inji. 190, j5. that if a verdift find,
that a man hath duas Partes Manerij in tres
Partes dividendasj it feemeth, that he is a te-
nant in common by the intendment of the
verdia. If th^fe words in a fpecial verdict
would create a tenancy in common by intend-
ment, there does not appear to be any good
reafon, why the fame words, or words of the
like import, in a deed at common law, Ihould
not create fuch a tenancy. Upon looking into
all the cafes upon the point, and upon the beft
confideration I have been able to give it, I
I am inclined to be of opinion, that the words
equally to be divided^ or any words of the
like import, whether in a will or in a deed,
at the common law, do create a tenancy in
common.
Rex verf. Bridges.
Thcaffirma- TJPON a motion to revive an attach-
tionofaQwa- ^ ment, the affirmation of a Quaker was
ker is not to offered, to fhew the right of the aflignees of
be admitted in ^ bankrupt to fome money awarded byarbi-
celdlr!^'''" trators to be paid.
°^' The affirmation was not permitted to be
read.
And by the court — ^The affirmation of a
Quaker is not to be admitted in any crimi-
nal proceeding whatfoever.
Maclifli
Hilary Term 26 Geo. 2. 1753- 73
Maclilh verf. Ekins.
IN a cafe referved, in an adion of Trover^ The property
it was ftated ; that the plaintiff, being in a navy bill
owner of a fliip, let it to the commiffioncrs ^^^^^^^*
of the navy ; that the plaintiff, who refided ^g^raent°of
in Scotland^ by a letter of attorney empower- the navy bUl.
ed Todd^ who refided in London j to receive
all freight and profits due to him as owner of
the fliip, to give dilcharges for the fame, and
do everything relative totheprcmifes, which
the plaintiff himfelf could lawfully do ; that
Todd received from the commifilioners of the
navy a navy bill for twelve hundred pounds,
to be paid to the plaintiff and his afiigns ; that
Toddj after having pawned the navy bill to
Honjwood and Fuller ^ ordered their clerk to fell
it, and place the money arifing from the falc
to his account ; that the clerk fold it to Hawkes
at a fair market price, and placed the money
to Todd*s account ; that Hawkes fold it to the
defendant at a fair market price ; that Todd^
in a bill of fale of his goods, which he after-
wards executed to the defendant, called him-
felf agent for the plaintiff; and, after recit-
ing the fale of the navy bill to the defendant,
gave him ftill power to receive the mone^r
thereupon due, and covenanted to maintain
his claim thereto againft all perfons whatfo-
ever ; and that the aftion was for the conver-
fion of the navy bill.
The queftion was. Whether Todd had an
authority, either to pawn or fell the navy
biur
It was holden that he had not.
And by the court-^--It has been faid ; that
Todd had an intereft in the Aavy bill, as well
L ?is .
74 Hilary Term 26 Geo. 2. 1753.
as an authority to receive it : But we are of
opinion, that he was only empowered by the
letter of attorney to acl as agent for the
plaintiffs.
It has been faid ; that if Todd^ inftead of a
navy bill, had received money, and paid it
away, the plaintiff could not have recovered
the money from the perfon to whom it was
paid : But the reafon why the plaintiff could
not have recovered in that cafe is, that mo-
ney has no ear-mark, and not that Todd
would have had a right to pay it away ; for, as
the money would have been received for the
ufe of the plaintiff, the paying of it away by
Todd would have been unlawful.
It has been very truly faid ; that the pro-
perty in a bank note, if delivered in the
courfe of trade for a valuable coniideration,
does pafs by the delivery : But it is as true;
that the property in a navy bill cannot pais
without aflignment, and as Todd had no
power to aflign the navy bill, the maxim Ca-
veat emptor applies to this cafe. The defen-
dant could not be ignorant of Todd being an
agent for the plaintiff, for he is fo called in
the bill of fale to the defendant ; and it ap-
pears, from the covenant entered into by
Todd^ which was to maintain the claim of the
defendant to the navy bill againft all perfons
whatfoever, that the defendant did himfelf
doubt of Todd^i authority to difpofe thereof.
Battie verf. Brown.
A miftake in
the dcclmti-" A F T E R one rule to Ihew caufe, why
on is not a m\. there fhould not be judgment as in
good cxcufc the cafe of a non-fuit, had been difcharged
for not trying ^pon an Undertaking peremptorily to try the
M?"oan un^^ ^^^^ ^' *^^ "^^' a2i25es, a fecond rule was
4crtakiDg. niade
Hilary Term 26 Geo. 2. 1752, 75
made to ihew caufe, why there fhould not be
fuch judgment.
Upon mewing caufe againft this rule, it ap-
peared ; that after the undertaking to try the
caufe at the next affizes, a miftake had been
difcovered in the declaration, which was for
the fale of a gelding ; whereas the fad was,
that the plaintiff had fold a mare to the de-
fendant ; that as this miftake was difcovered,
and there was no count for goods fold, the
caufe was not tried; and that notice had been
given, before the prefent rule was moved for,
of a motion for leave to amend the declara-
tion.
The rule was made abfolute.
And by Wright], and Deni/ortj J. (L^^ Chief
Juftice being abfent)— The plaintiff ought to
have been fatisfied, that this declaration was
right, before he undertook peremptorily to
try the caufe.
But Fq^er J. faid; that it would, in hb
opinion, be rather too rigid a conftruAion of
the ftatute to hold, that the plaintiff, under
the circumftance of this cafe, was obliged to
(ry his caufe at the next aifizes.
Rex veff. Bow,
UP O N a rule to fliew caufe, why an at- The afHrma-
tachment ihould not be awarded for tionof aQaa-
non-performance of an award, the affirma- J^r is not to
tion of ar^uaker was offered on the part of l>« admitted in
^1- J r j^"*. ' acnminalpro-
the defendant. . ^ ^ ^ ceedinginex-
It was not permitted to be read. calpation of
If 2 And the defendant.
76 Hilary Term 26 Geo. 2. 1753.
And by the court — ^It has been faid ; that
this affirmation is in exculpation of the defen-
dant : But the affirmation of a Quaker can
no more be admitted on the part of the de-
fendant, on fliewing caufe againft the prefent
rule, than it could upon the part of the pro-
fecutor, upon the motion for the rule.
Tourville veff. Nafli*
The ifluc and T TP O N a rule to fhew caufe, why the if-
Nifi Prius ToU \^ fue delivered, and the Nifi Prius roll
may be a- fhould not be amended, the queftion was,
"leafol^^'^^ Whether both thefe Ihould be amended, by
p ea ro . ^^ ^j^^ ^^jj^ ^^ ftriking out the words, in a
Plea of Trefpafs upon the Cafe^ and inferting the
words iti a Plea of Debt ?
It was holden ; that both might be amend-*
ed by the plea rolL
Rex verf. Bedell.
An abfolute T TP O N an affidavit that there were many
rule for the lu interlineations and obliterations in a
Siebook°of°a ^^^^ ^^ ^ corporation, wherein entries re-
corporation at l^i^ive to elections were made, an abfolute rule
the trial of an was made, for the produftion of the book at
information, the trial of an information in the nature of a
J^uo Warranto.
And by the court — ^It is neither ufual, nor
reafonable, to make a rule to fhew caufe in a
cafe like the prefent.
Anonymous.
Hilary Term 26 Geo. 2. 1753. 11
Aftonymous.
UP O N a motion to change the Venue^ it The form of
did not appear from the affidavit, that an affidayitfor
the caufe of a£lion, if any, did notarife elfe- changing the
where out of the county, to which the mo- ^^^*
tion was to change its Venue.
The affidavit was holden to be Infufficient.
And by the court — In order to change the
Venue^ it muft appear from the affidavit, that
the caufe of adtion, if any, does arife in the
county to which the motion is to change it,
and not in the county where the Venue is laid,
or elfewhere out of the county to which the
niotion is to change it ; for the caufe of adion
may arife out of the realm ; in which cafe the
Venue ought not to be changed ; becaufe the
action may as well be tried in the county
where the Venue is laid, as in any other coun*
ty where the caufe of aftion did not arile.
Anonymous.
UPON a rule to fliew caufe, why the Ananorncyis
judgment figned fliould notbefet afide not bound to
for irregularity, it appeared ; that the judg- ^^ ^?^ ^^ ^
ment was figned j becaufe the plaintiflF, who ^herda^hc b
was an attorney, refufed to pay for the plea, plaintiff.
The rule was made abfolute.
And by the court — ^An attorney is not
obliged to pay for the plea in a caufe, where-
in he is himfelf plaintiff*
AnonyraoMS.
79 Hilary Term 26 Geo. 2. 1753.
Anonymous^
A Rule was made abfolute, for an infor-
mation againft the parifh officers of
Cheltenham^ for forcibly entering a woman's
houfe, and removing her fon who was ill of
the fmall pox, when the diftemper wasalmoft
at the heighth ; by whigh the fon was much
frighted, and before his death, which happen-
ed foon after the removal, declared, that if
ije f^ould die, the removal would be the caufe
of his death.
Pike veff. Corbin.
T TP O N a motion to ftay the proceedings,
1^ until fecurity fhould be given for the
payment of cofts, in cafe the derendant fhould
become entitled to any, it appeared; thai
the aftion, which was for the mefne pro-
fits of the premiffes recovered in an action of
ejedment, was brought in the name of the
nominal plaintiflf in the adion of ejeftment.
A rule was made to fhew caufe, which,
no caufe being fliewn, was afterwards made
abfolute.
Cranfton veff. Clarke.
The land-tax T N a cafe referved, in an aftion of cove.
may be de- A nant, it was ftated ; that the rent referved
duded by a in a leafe was to be paid without any deduc-
T*" k ""'^^' ^i^" or abatement whatfoever.
e Ws\aL- ^^^ queftion was, Whether the leffee had a
ment that it Hght to decju^ out of the rent the money paicj
fhall not. by him for the land tspc i
I
Hilary Term 26 Geo. 2. 1753. 79
It was holden that he had.
And by the court — As every tenant is en-
abled by the land tax aft, to deduft the mo-
ney paid for the land tax out of the rent paid
to his landlord, this money may always be
dedu&ed, unlefs there is an exprefs agree-
ment that it ihall not.
Rex verf. The Burgeffes of Caermarthen.
IN order to obtain a trial at bar, it was A trial at bar
alledged in an affidavit ; that the caufe is onghtDottobe
expeAed to^ be long and difficult ; and that f^^mlX^
the matter in queftion is of great value. «mon^of ^dif'
The affidavit was holden to be infufficient. ficulty in the
And by the court — ^The granting of a trial caufc.
at bar is entirely in the difcretion of the
court, and fuch a trial ought not to be grant-
ed without good reafon : Becaufe it is very
expenfive to the parties, and the buiinefs of
the other fuitors is thereby delayed. Neither
the length of a caufe, nor the value of the
matter in queftion, is a fufficient ground for
granting a trial at bar ; and in order to obtain
one upon the account of difficulty, it is not
fufficient to fay generally in an affidavit that
the caufe is expeded to be difficult: But the
particular difficulty which is expefted to arifc
ought to be pointed out, that the court may
judge, whether it be fufficient for the grant-
ing of a trial at bar.
Eafter
8o
Eafter Term,
26 Geo. 2. i753«
Sir William Lee, Chief Juftice.
Sir Martin Wright
Sir Thomas Denifon.
Sir Michael Fofter
ight, 1
enifon, >JuJlices.
fter, 3
Catling verf. Bowling*
Leave given TTPON a motion for leave to bring a
to bring a \^ book into court, for the converfion of
book into which an adlion of Trover was brought, it
adion of Jre?. appeared; that the book, entitled Memoirs of
vsr. ^ Woman of Pleafure^ had been lent by a book*
feller to fome young ladies at a boarding
fchool ; that the defendant's wife, who was
miftrej& of the fchool, took it from them and
fent it to the bookfeller, with a requeft that
it miffht not be again lent to the young ladies ;
and that the book being afterwards round in
the poffefEon of one of the young ladies, the
defendant's wife took it from her and kept
it.
A rule
Eafter Term 26 Geo. 2. 1753. 81
A rule was made tofliewcaufe, why, upon
bringing the book kito court, the proceedings
ihould not be ftayed ; and it is probable, that
the plaintiff thereupon agreed to drop his ac-
tion ; for the Court never heard any more of
the rule.
Adams vcff. Freeman ancj Wynne.
IN an aftion of Trefpafs, the plaintiff de- ^tisnotne.
clared in one court, for an affault and ouftL'^'S
falfe imprifonment for the fpace of fourteen ceedingsm^n
days; and in another, for an affault and falfe inferior court,
imprifonment for the fpace of three months, « ? p'ea to an
adtion of tref-
The defendant Freeman pleaded in bis juf- rior court,
tification, that a plaint was levied and procefe
prayed at his fuit in an inferior court, that
iuch proceedings were thereupon had, that a
Capias was awarded ; that the plaintiff, by
virtue of this Capias^ was arrefted and detained
in cuftody fourteen days ; and that he was
then brought into court, and committed for
^he refidue pf the term of three months.
The other defendant, who was the officer
by whom the arreft was made, pleaded a like
plea in his juffification.
Upon a demurrer to thefe pleas, the quef-
tion was, Whether if was neccflary for both
or either of the defendants to fhew, that a
fummons iffued before the Capias was award-
ed?
The pleas wer? both holden to be good.
^ And
82 Eafter Term 26 Geo. 2. 1753.
And by Lee Ch. J.— — ^It was heretofore
neceflary, for the plaintiff in an adion in the
inferior court, who would juftify an impri-
fonnient under a Capias awarded by that
court, to fet out in his plea of jufiification,
all the proceedings anterior to the awarding
of the Capias : But it Was never neceffary,
for the officer by whom the arreft was madq
to do this. It has, however, for fome years
paftbeen holden fufficient, for the plain tiflFiii
the aftion in the inferior court to alledge in
fuch plea, that a plaint was levied and procefi
prayed in ihe inferior court ; and that fuper-
inde taliter Procejfum fuit^ that a Capias was
awarded ; without fetting out all the proceed-
ings between the levying of the plaint and the
awarding of the Capias. * v -
In the cafe of Gwynne v. Poole^ Lutw. 943.
it is laid down, that it is fufficient to do this ;
and it was in that cafe holden exprefsly, that
it is not neceflary to fhew in fuch plea, that
a fummons iffued before the awarding bf the
Capias. The authority of the cafe of Gwynne
V. Poole^ has been frequently recognifed ; arid
the authority of the cafe of Redd v. WilmoU
' i Vent. 222. in which it was holden, that it is
neceffary to fliew ' in fuch plea, that a fum-
motis iuued before the C^/Z^zj was awarded,
has been as frequently denied.
It has been faid ; that it is not alledged
in the l^\c^oi Freeman^ that the caufe of the
aftion in the inferior court arofe within the
jurifdidiori of that court : But it is alledged,
that a plaint was levied iri the inferior courts
for a caufe of adion arifirig within the jurif-
di6lion of that court \ this is a fufficient alle-
gation, that the caufe of that aftion did
arife within' the jurifdicHon of that courts
that
EaftcrTerm 26 Geo. 2. 1753. 83
that the faft Whether it did arife therein
might have been tfaverfed. It is moreover
laid down in th,e cafe of Gwynne v. Poole^ that
it is not neceflary to alledge exprefely, in a
plea fimilaf to that in the prefent cafe, that the
caufe of the aftipn in the inferior court arofe
within the jurifdiftion of that court ; for that
it is fufficient, if it appear in the plea, that
the caufe of that adion did arife within the
jurifdidion of that court.
Griffith verfi Griffith*
ITN ah adioh of debt brought by an ad-
JL miniftratrix, it appeared from the declara-
tion ; that her letters of adminiftration were
granted by thd Biftiop of BriJioL
The defendant pleaded ; that the plaintifPs
Inteftate died upon the high fea, out of the
jurifdidtion of the Bilhop of Brijiol ; and that
the letters of adminiftration were upon that
account void.
Upon a demurrer* to this plea, the letters
of adminiftration were, upon great coniidera*
tion, holden to be good.
And by Lee Ch. J.— The right of granting
letters of adminiftration is not founded upon
the dying of an inteftate within a diocefe, but
upon his leaving goods therein.
There is a great miftake in the report of
the cafe of HiliardY. Cox^ i Salk. 37. in which
it is laid ; that a plea iimilar to that in the
prefent cafe was holden to be good ; for it
appears, from the pleadings in that cafe, 2
Salk. 750. that the plea was not that the
plaintiJQrs inteftate was, at the time of his
M 2 death,
The right of
granting let-
ters of admi-
niftration is
not founded
upon the dy-
ing of an in-
teftate within
a diocefe, but
apon his leav
ing goods
therein*
84
Eafter Term 26 Geo. a. 1753.
de^th, refidcnt in another diocefe : But that
the debtor to the plaintilPs intcftatc was, at
the time of the inteflate's death, refident in
another diocefe.
As there was a debt upon fimple contraft
due to the plaintiff's inteftate at the time of
his death, from a perfon who at that time re-
fided within the diocefe of Bri/tolj this, agree-
ably to what is laid down in the cafe of Teo^
mans v. Bradjhaw^ Garth* 374. gave a right
prima facie to the Bifhop of Brijlol of grantmg
letters of adminiftration ; and we will not in-
tend that the plaintiff's inteftate left Bona No-
iabilia in any other diocefe. We will, on the
contrary, rather intend, for the fake of
fupporting the letters of adminiftration, that
the plaintiff's inteftate did not leave Bona No-
iabilia in zny other diocefe.
A prebendary
is not entitled
to (hare of
the revenues
of the church
before it is di-
vided, UDlefs
fome part
thereof be
allotted to his
prebend in
particular.
Young veff. Lynch.
IN a cafe referved, in an aftion oi AJfumpJit^
it was ftated ; that the aftion was for
money had and received to the ufe of the
plaintiff; that upon the 24th day of June^
1 746, 2 prebend of Canterbury was granted by
the kmg to the plaintiff; that upon the fame
day the dean and chapter were commanded to
affign the plaintiff a ftall in that cathedral ;
that upon the 27th day of the fame month the
plaintiff was admitted a prebendary; that
upon the 28th day of the fame month he was
inftalled ; that upon the 24th, 25th, 26th and
27th days of the fame month a chapter was
holden, and fines were fet andpaid, upon the
renewal ofleafes, to the amount of two thou-
fand nine hundred and eighty-nine pounds,
three fliillings and fix-pencc; that by the
ftatutes
Eafter Term 26 Geo. 2. 1753. ^5
ftatutes of the church, the money received
for fines, upon the renewal of leafes, is to be
divided into fhares ; of which two are to be
paid to the dean and one to each prebendary ;
that the money received for the fines paid,
upon the days before mentioned, was divided
into thirteen fliares ; that the defendant, who
was dean, received two fhares, which
amounted to . four hundred and fifty-nine
pounds, feventeen fhillings and five-pence
halfpenny ; that if this money had been divid-
ed into fourteen fhares, and one of them had
been paid to the plaintiff*, two fhares would
have amounted to no more than four hundred
and twenty-feveii pounds, two fhillings and
fix-pence : And confequendy, the dean would
have received thirty-two pounds, fizteen
fiiiUings and eleven-pence halfpenny lets than
he did receive f that there are very few in-
flances of a prebendary's having received a
fhare of the fines paid upon the renewal of
kafes, which were fet at a chapter holden
prior to his inflallation ; and that in every
one of thefe inflances, it is expreiTed in the
aft of the chapter, that the fhare was paid to
the prebendary by the benevolence of the Dean
and Chapter*
One queftion was, whether the plaintiff
had a right to a fhare of the money paid for
fines upon the 24th, 25th, 26th and 27th
days of ^fw^?
It was holden, upon great confideration,
that he had not.
And by Lee Ch. J. — The claim of the plain-
tiff is founded upon the 28 H* S. c. i i.par. 4.
l^y which it is provided, that the revenue and
profits of a prebefid, growing due during a
vacancy of the prebend, fhall be paid to the
.next perfoH who Ihall be lawfully admitted
to
86 Eaftcr Term 26 Geo. 2. 1753.
to the prebend. Under thi3 ftatute, the per^
fon admitted to a prebend is entitled to fuch
part of the revenue of the church, growing
due during the vacancy of the prebend, as is
allotted to that prebend in particular : But no'
part of the revenue of the church of Canterbury
IS allotted to any prebend in particular, ex-
cept the annual fiipend of feventeen poundsy
fix {hillings and eight-pence, which, by the
1 6th chapter of the ftatutes, is to be paid to
every prebendary pro corf ore prabenda fua^
The refidue of the revenue is the joint pro-
perty of the dean and chapter, as being aa
aggrec^ate body; and no member of this
body nas any right to any part thereof, before
it is divided into ihares. In the cafe oiPhilipx
v.fiury^ Skin. 488. it is laid down; that the
head of a college cannot maintain an aflize
for any part of the revenue of the college^
until his part thereof i$ afcertained by a diviii^
on of the revenue.
No pofitive opinion was given in the cafe of
Mofely V. Warburton^ Lord Raym. 265. But
Holt Ch. J. expreffedhimfelf to the following
purport ; If a prebendary be a fole body, the
Biihop, upon a levari facias de bonis ecclejiajiicisi
may fequefter his prebend: But if a prebendary
be a member of an aggregate body, compofed
of a dean and chapter, the bifliop ought to rt'^
XMvn nulla bona ecclejiajlica: Becaufe luch pre-
bendary is not entitled to any part of the reve-
nue of the church, before a divifion is made
thereof.
Another queftion was. Whether, if the
plaintiff had a right to a fhare of the money
paid for fines upon the 24th, 25th, 26th and
ayth davs of June^ he ought to recover the
fum of thirty-two pounds, fixtecn fhillings and
eleven-pence halfpenny in the prefent adion I
Eafter Term26 Geo. 2. 1753. 87
As the opinion of the court was againft the
plaintifF upon the other queflion, no opinio|[i
was given upon this.
Griffith verf. Williams.
UPONaruletofliewcaufe, whyavcrdift ^^^^^l
upon an iffue joined on a plea of not Spka'^J^
guilfj^ and an aflelTment of damages, upon a the laft con-
judgment on a demurrer^ by the jury who tried tinuancc day,
^ue, fhould not be fet aiide, it appeared ; without leav^
that after tlje notice of trial had been given, ^^^* ^°^^*
the defendant's attorney, upon the lau con-
tinuance day, entered a relida verificatione as
io the plea of not ^ilty, and g^ve notice
thereof to the plaintiff's attorney..
The queftioh was. Whether the plaintiff
could proceed to the trial of the iffue, after
potice that a relida verificatione was entered as
to the plea of not guilty. '
It was holden that he might.
And by the court— The defendant could
pot wave his plea of not guilty upon the laft
continuaiice day, without leave of the court,
and conf^quently the plaintiff was not obliged
to regard the notice of waver thereof. The
cafe, which has been cited, goes no further
than to fliew, that a defendant may, without
leave of the court, wave his plea before the ad-
journment day.
^tonehoufe
88
Eafter Term 26 Geo. a. i753»
A defendant
cannot demur
vnlefs for
good caufe,
after an un-
dertaking to
plead iffnably.
Stonehoufe verf. VowelU
UPON a rule to fhew caufe, why the juclg»
ment fliould not be fet afide for irregu-
larity, it appeared ; that after the defendant
had obtained an order from a judge for time
to plead, upon an undertaking to plead aa
ifTuable plea, and take fhort notice of trial,
he demurred generally.
The rule was difcharged.
And .by the court — A demurrer for good
caufe would certainly have been an ifluable
plea within the meaning of the defendant's
undertaking : But as the demurrer is a gene-
ral one ; and as there does not appear to be
any good caufe for demurring, the court
ought to intend, that it was a trick t® poftpone
the trial of the c?tufe.
An appren?
ticelhip is de-
termined by
the death 01
^ther mailer
fu- appren-
tice
Rex verf. The Inhabitants of Eakring.
IN an order of feffions it was ftated ; that
the Pauper was bpund an apprentice, by
parifli indentures, in the parifli of Eakring^
until he fhould attain the age of twenty-one ;
that he ran away from his matter, and never
returned to him ; th^t his mafter died in June
1749; thzt^iX. Michaelmas 1749 he let himfelf
as a fervant for a year in the parifli of Selfc
on.
andferved the year; that at Martinmas 1750
he let himfelf to the fame mafter for another
year andferved it ; that he received the wages
for both years fervice himfelf, no notice be-
ing taken of him by the executors of his maf-
ter; and that in January 1750, he attained
the age of twenty-one years.
The
Eafter Term 26 Geo. 2. 1753. 89
' ■ ■ ■ " I I .H i I H I i^<|Wii»WII WW ^»i—— —————— ^—— I i
The queftion was, Whether the Pauper
gained a fettlcment in Selfon ?
It was holden that he did.
And by the court — It has been faid ; that
the apprenticcfhip continued, notwithftand-
ing the death of the mafter : But we are of
opinion, that it did not. In the cafe of Rex
V. Peck J Salk 66. it is faid by Eyre J. who was
afterwards chief juftice of the court of com- -
mon pleas, that an adion of covenant lies
upon an indenture of apprenticefhip againft
an executor ; becaufe no inconvenience fol-
lows therefrom, in as much as the executor
may defend himfelf by , pleading no affets :
But that the apprenticefhip, it being a per-
fonal truft between the mafter and apprentice,
is determined by the death of either ; becaufe
the end and defign thereof can no longer b?
obtained.
N Tpnity
90
Trinity Term,
27 Geo. 2. 1753.
Sir William Lee, Chief Jujlke.
Sir Martin Wright, 1
Sir Thomas Denifon, \jujlices.
Sir Michael Fofter, J
Rex verf. Furfer.
A new trial T TPON a nile to fliew caufe, why a new
granted after vJ trial Ihould not be had in an indiftment^
an acquittal it appeared ; that the indiftment had been.
Kent? removed by the defendant ; that his clerk in
court had entered notice of trial in the office
book ; and that the defendant had been ac-
quitted.
The rule was made abfolute.
And by the court — ^It has been faid ; that
as the defendant was obliged, by the recog-
nizance entered into upon removing the in-
didment, to try the iffue that fhould be there-
upon joined at the next aflizes, it was not
neceffary
Trinity Term 27 Geo. 2. 1753. 9'
neceflary to give any notice of trial : But it is
by the 5 W. ^ M* c. 11. provided, that no-
tice of trial {hall in fuch cafe be given by the
defendant.
It has been faid ; that if any notice of trial
were neceflary, the entering of notice in the
office book was fufficient notice : But it is by
the fame ftatute provided, that notice of
trial ihall, in fuch cafe, be given by the de-
feadant to the profecutor or his clerk in court.
Hampfon ver/l Adfliead.
UPON a motion for the matter to review Full cofls arc
his taxation of cofts in an adion of tref- °®^ ^^ be paid
fa/s, it appeared; that the plaintifF had de- ^--^t
clared m one court, that the defendant aflault- jj^ry to a pcr-
ed and beat him, and threw him down upon fonal chattel,
the ground, which was covered with water, if the da-
and thereby damaged his cloaths ; that there ^^^^^"^^ ^^^
was a general verdiA for the plaintiflF, with fhiJiinrs^ and
damages under forty fliilHngs : And that the there i* not a
judge, before whom the caufe was tried, had certificate
not certified that the battery was fufficiently
proved.
The queftion was, Whether the plaintifF
ought to recover any more cofts than da-
mages ?
It was holden that he ought not.
And by Lee Ch. J. — The damaging of the
cloaths is charged in this declaration, as a
confequence of the aflault and battery, and •
cannot be fo feparated therefrom, as to make
it an independent injury to a perfonal chattel.
And by Denifon J. the word thereby means the
fame as the words per quod^ and it has been
N 2 frequently
9^ Trinity Term 27 Geo. 2. 1753.
frequently holden, that a plaintiff in an a£lion
of trefpafs is not entitled to full cofts for an
injury to a perfonal chattel laid with a^^ quod^
unlefs damages are found to the amount of
forty ftiillings, ot there be a certificate. If it
had been alledged that the defendant threw
water upon the plaintiff^s cloaths, and that the
cloaths were thereby damaged, the plaintiff
would have been entitled to full cofts ; becaufe
the throwing of the water upon the cloaths
would, in that cafe, have been an indepen-
dent injury to a perfonal chattel.
Rex verf. The Inhabitants of Steyning.
A parifli \% T TpON a motion for an information againft
not obliged to U the defendant, for not repairing a high-
"a^'^which ^^y ^^ ^^ P^"^ ^^ Steyn'mg^ it appeared ;
is not much that the highway was out of repair ; that the
wanted for the parifli had always repaired it ; and^hat two
^^Ir^^^^ bills of indictment for not repairing it, which
pubhclu Yi2i^ been preferred to two grand juries, had
been found no true bills : But it likewiife ap-
E eared ; that the highway was only about one
undred yards in length; and that another
highway in the town of Steyning^ near this,
and fo little a way about as to be almoft
equally convenient to the publick, was in good
repair.
Wright J. was of opinion, that a rule to
fhew caufe ought to be made ; for that all
highways ought to be kept in repair.
• The other three juftices being of a contrary
opinion, no rule was made.
And by them — The court ought never to
give leave to file an information, for not re-
pairing a highway, unlefs it appear j that it
i& of confequence to the publick that the high-
way
Trinity Term 27 Geo, 2. 1753. 93
way ihould be repaired ; and that the grand
jury have been guilty of very grofs mifbeha-
viour in not finding a bill of indidment a true
biU. No mifbehaviour of cither of the grand
juries is charged in the prefent cafe ; and it
would be a great hardfliip to compel the parifh
to repair this highway, when it appears, that
another highway, almoft equally convenient
to the publick, is in good repair. There arc
in many pariflies ways which may be well
deemed highways, and yet are fuffered to be
out of repair ; becaufe the repairing of them
would be of very little confequence to the
publick, and it would be an immenfe expencc
to the pariflies. There is another reafon,
why the court ought never to give leave to file
an information for not repairing a highway,
unlefs it be a cafe of great enormity ; namely,
that the fine fet, on a conviftion upon an in-
formation for not repairing a highway, can-
not be expended in repairing the highway ;
whereas the fine fet, on a conviction upon an
indiftment for not repairing a highway, is al-
ways to be expended in the repair of the high*
way.
Newland and others ver/. Ofomond.
IN an action of debt upon a bond, the con- The putative
dition of the bond appeared to be ; that ^A^'^^^ifi j
the defendant fliould indemnify the church- may*maintain
wardens and overfcers of a parifti, and their it himfclf.
fucceffors, from all expencc on account of the
birth, maintenance and education of a baftard
child.
The defendant pleaded ; that, from the
time of the birth of the child to the time of
its being put out to nurfe by the plaintiffs,
who
94 Trinity Term 27 Geo. 2. 1753.
who were the churchwardens and ovcrfeers
of the pariih, he had maintained it ; that at
the time of putting the child out to nurfe he
o£fered to maintain it, and has been ever fince,
and ftill is, ready to maintain it ; but that the
plaintiffs at that time refufed, and ftill do re-
fufe, to permit him fo to do ; that the plain-
tiffs of their own wrong put the child out to
nurfe; ind that if they are damaged, the da-
mage was occafioned by their own wrong.
The pl^ntiff's replied ; that for the fpace of
three weeks after putting the child out to
nurfe the defendant did not maintain it ; but
they were obliged to maintain it, whereby
they are damnified.
Upon a demurrer to this replication,' Lee
i Ch. J. Wright, J. and Denjfon J. were of opi-
nion, that the putative rather of a baftard
child has a right to maintain it himfelf.
And by tnem — It is by the 18 E/iz. c. 3.
provided, that an order may be made for the
relief of a parifli, in cafe a baftard child has
been left to be a charge upon it, and for the
further maiiftenance of a child fo left : But it
does by no means follow, that the putative
father may not maintain it himfelf. It ought
rather to be inferred that he may ; for, by fo
doing, the mifchief intended to be remedied,
namely, the child's being left to be a charge
upon the parifli, would be prevented. In
Sherman^s cafe, i Vent. 210. it is faid by Twif-
den J. that an order for the putative father
of a baftard child to allow a certain fum per
week for the maintenance of the child, until
it fliall be able to get its living by working,
is bad ; for, perhaps, the father would take it
away and maintain it himfelf, which he may
do if he pleafe. It is not proper, that a parifli
Ihould in all cafes have the care of a baftard
child
Trinity Term 27 Geo. 2. 1753. 95
child born therein ; for the father, who may
be a man of fortune, would, perhaps, take
much better care of it.
Fofter J. doubted, as to the right of" the
putative father of a baftard child to maintain
It himfelf, and added, that in his opinion,
there would be danger of baftard childrens
dying for want of care, or of their being
murdered, if all the putative fathers of fuch
children could take them from the oflSicers of
the parilhes wherein they are born, and carry
them where they pleafe.
The cafe was ordered to ftand for confidera-
tion.
At another day judgment was given for the
defendant ; the opinion of the court being ;
that the plea, which contains a fufficient ex-
cufe for non-performance of the condition of
the bond, is good ; and that the replication
is bad, becaufe it does neither confefs, nor
avoid, the matter pleaded in excufe.
Davifon verf. Davifon.
UPON a rule to fliew caufe, why an at- A oayment of
tachment fliould not be awarded for ^^j„'^°^^^^^
non-payment of cofts, it appeared; that the neylsgoodl
demand of the cofts was made by the perfon although he
known to be the afting attorney in the caufe ; aa in the
that this perfon not bemg an attorney of this nameofano-
court, the name of another perfon, who is ^ ^^ attorney.
an attorney of this court, and in whofe name
the caufe was commenced and carried on, is
upon the record ; and that the afting attor-
ney had not a letter of attorney from the at-
torney upon the record, empowering him to
receive the cofts.
The
96
Trinity Term 27 Geo. 2. 1753.
The rule was made abfolute.
And by the court — As the perfon, by whom
the cofts were demanded, was known to be
the ading attorney in the caufe, payment to
him would have been a good payment, al-
though he be not the attorney upon record ;
for it IS by the 2 G. 2 c. ij^.par. 10. provided;
that an attorney of any of the fuperior courts
may commence and carry on, or defend, an
aflion in any other of the fuperior courts, in
the name of an attorney of the court in which
the acUon is commenced.
Rex verf. Newland,
T TPON a rule to fliew caufe, why the de*
Several mat-
ters cannot be ^^ fendant fhould not have leave to plead
pleaded in an fgyeral matters in an information in the nature
IhcTt"re°ofa oi z quo warranto, the queftion was. Whether
quo warranto, the 4 Ann. c. 1 6. do extend to fuch an infor-
mation ?
It was holden that it does not.
And by the coxirt — ^There is no inftance
of the courts having given leave to plead fe-
veral matters in an information in the na-
ture of a quo warranto.
Callaghan verf. Pennell.
Nonaffumpft
tnfrajex (
is a fpccial
plea.
annos
UPON a rule to fliew caufe, why the judg-
ment Ihould not be fet afide for irregu-
larity, it appeared ; that the adion was an
zQxon oi affiimpjit ; that non ajfumpjit infra feu
annos was pleaded ; and that the iflue was not
made up by the clerk of the papers.
The
Trilifty Term 27 Geo. z. 1753* 97
The rule was made abfolute.
And by the court— In the cafe of Howell v.
Clarky HiL 13 G* 2. in this court, and in the
cafe of the Bank of England y. Wait^ Trin. 16
G. 2. like wife in this court, it was holden ;
that non ajfumfjii infra fex annos is a fpecial plea,
and no cafe has been cited, wherein the con-
trary has been holden. Wherever a fpecial
plea is pleaded, the iffue, by the fettled prac-
tice of this court, muft be inade up by the
clerk of the papers.
Niibett ^'eff. GriAtii.
UPON a rule to fhew ckufe, why the phAtt- a dcclamion
tiff Ihould not have leave to amend his cannot be a-
declaration, it appeared ; that the amendment "\^^^*^^^^
intended was to add a hew count after two coum^a^cr^
terms. two termi.
The rule wa^ difcharged.
And by the court— It nas been faid ; that in
the cafe of The Executors off he Dutchefs ofMarU
hotou^h V. Widmore^ Trin. 4 G. 2. in this court,
leave was given to amend by adding a new
count after two terms : But no other cafe ha*
been cited, wherein fuch an amendment hai$
been permitted, and it was in that cafe per-
ttiitted upon very particular circumftances ;
fiamely, that the defendant had ]^eaded thi
ftatute of limitations ; and that, if the court
did not give leave to amend, the right of ac^
tion would be loft, the plaihtiflS not being ia
time to bring a new adion.
Rc«
98 Trinity Term 27 Geo. 2. 1753.
Rex vtff. Smith.
Itisnotnccef- T TPON a Tulc to fliew caufe, why judg-
fary to fct out \^ ment fliould not be arrefted, it appear-
l^"" ^^T^'^'^ ed ; th^t the defendant had been found guilty
breadth of a ' • j-n ^ r r • P • '
Bufancc in an upon an indictment for a nuiance, in laying
indiament. foil in a highway, between a place called J.
and a houfe called B. in the pariih of St. Mary
Ottery.
The queftion was, Whether the indid:-
ment is bad for want of the length and breadth
of the nufance being fet out ?
After taking time to confider, it was holden
that the indidment is not bad.
And by Lee Ch. J. — ^It has been faid ; that
although neither the length nor breadth of
the nuiance is traverfable, both ought to be
fet out in an indiftment for a nufance, in or-
der to guide the difcretion of the court in
fctting a fine : But it is not neceflary on that
account ; regard not being had by the court,
in fetting a fine, to the length and breadth of
the nufance fet out, but to the length and
breadth proved. Of both thefe the judge,
before whom the indiftment was tried, muft
always be fufficiently informed for giving
judgment, and if judgment is not to be given
by him, but by another court, that court
will always be fufficipntly informed of both by
his report.
Hewitt
Trinity Term 27 Geo. 2. 1753. 99
Hewitt verf. Penny.
UP O N a rule to fliew caufe, why an a- An award fet
ward fliould not be fet-afide, it appear- ^J^'^'^j^^?^''^^
ed ; that the arbitrators, inftead of choofing ^„\ „"^^"^ .
an umpire, which m cale of their not confequence
agreeing they were empowered to do, had of tolling up.
tofled up who fhould name one ; and that the
award was made by the perfon named in con-
fequence of the toffing up.
The rule was made abfolute.
And by the court ^In the cafe of Harris
V. Mitchell y 2 Vem. 486. an award made by •
an Umpire was fet afide ; becaufe the two ar«
bitrators had thrown up crofc or pyle who
fliouId name the Umpire.
Kennedy verf. Kennedy.
UPON a rule to fliew caufe, why the Letters of ad-
trial fliould not be put off, it appeared; miniftration
that the adion was brought by an adminiftra- Sr undl
tor ; and that a fuit was depending in a fpi- i^j are re-
ritual court for revoking his letters of admi- voked
niftration.
The rule was difcharged.
And by the court ^The plaintiff hjw a
right to aft under the letters of adminiftra-
tion, until they are revoked. There is no
neceflity to put off the trial in this cafe ; for
if the plaintiff ihould proceed to execution,
and the letters of adminxftration fliould be
O 2 afterwards
loo Trinity Term ay.Gco. 2. 1753.
afterwards revoked, an audita ^erela would,
agreeably to what is laid down in the cafe of
Turner v. Daviesy 2 Satind. 150, lie for the
defendant*
Lawrence ver/^ Bofwell.
A Tcrdia for T T P ON a rale to fliew caufe, why a new
whiSthlv ^ *"** Ihould not be had, it appeared';
rors voted "^"" that the jurors, not agreeing as to the finding
ought not to of a verdia, voted tor one ; that the votes
be fct afidc. of feven of them ^ere for finding it as it is
found ; and that no obje£lion was made by
the other five when the verdift was given.
The rule was difcharged.
And by the court— Nothing was in this-
cafe determined' by chance. Tne five jurors
might ultimately be convinced by the leven:
But if they only acquiefced in the finding
of the verdia, that is fufficient ; and they
fliall not now be received to fay, that they
didnotacquiefce.
Rex vcff^ The Inhabitants of Tardebigg.
Mtrriagcdur'^ TN w order of feflions it was ftated; that
ing a fenrice Jf the Pauper was hired as a fervant, from
do«s not pre. Michaelmas day in one year to Michael-
▼tnt the gain- « . 1 "^ ^ ' • 1 -/i r
ingofafcttlc- ^^^ day m the next, year, m the pariibof
ment. Tardebigg; that he came three days after the
fpirn^^r Michaelmas j and. flayed one d^y after
t}^ latter; that he^ was , abfent, during thie
y^r^ at.djySEerent times about fourteen days^
£f}t which ,fiX} fliilliiigs were dedu^2;ed out of
hj^ wages ; tha^v he was alterward;^ hired for
a.^y^ar in Hanbury ;X\^X after. ferving. three
q^j^erp.of this year hednuried a woman who
was
Trinity Term 27 Gco^ 2. 1753. *^'
was with diild;: that complaint was made of
this by hm mafier to a juftice of peace, who*
made na order for the discharge of the Pau^
fttr ; and that fiaon. after the Pauper was dif-
charged by his mailer, and a dedudion wa»
made out of his wages for the remainder of
the year; that the difcharge and dedu6lion
were againfi the confent of fhe Pauper ; and
that he offered to ferve the remainder of the
year.
Qne; q^efUon was, Whether the Patip0t
gained a fettlement in. Tar^ebigge I
It was holden that he did.
And hy the court ^The abfences of the
Pauper in the beginning of the year, and
during the iervice,were.cured by the matter's
reoeiving, him again ;, and the .dedudioa of
wages: cud notgrevent his: gaining a ietde^
ment.
Anoliier queftion was^ Whether the P^w-
/i^ gained a; iubiequent fettlement inHim^
imryJ
It was holden diat he did^
And.bythecourtr— Marriage; is not.initfelf
a^diffolution .of ar contra^- for fervice. It has
been holden, that marriage is not a goodcaufe
for difchargiog 2U1 apprentice: For that the
remedy is by an adion upon the covenant.
It is very doubtful, whether, as the power
given to a juftice of r the peace by the ^ Eliz.
c. 4, par. 5. of difcharging a fervant, is only
given for reafonable caufe, marriage is a rea-
mnahld caufe of difcharge^: But if it be^ as
tiJe Juftice of? the peace made no order for the
difcharge^ of • the' Pauper^ the' difcharge by Ms
mafter was ill^al. The oflfer of the. Pauper to
ferve^theTemauidorof thte year ought to be
deemed
I02 Trinity Term 27 Geo. 2. 1753.
deemed a continuation of the fervice ; and if
the fervice continued, the deduction of wa-
ges, efpecially as it was againft the confent of
• the Pauper^ did not prevent his gaining a fet-
tlement.
R^ verf. Blunt.
A new trial TTPON a motion for a new trial, it ap-
cannotbehad U peared ; that the defendant had been
^5T^ ^"n ^cq^i^^^d upon an information in the nature
rinfoTa- oi 2.^0 Warram.
tion in tke na- The court refufed to make a rule to fliew
turc of a ^0 caufe.
Warranto. And by the court— In the cafe of Rex v,
Bennett^ Trin. 4 G. i. which was argued be-
fore all the judges, a new trial was not grant-
ed after an acquittal upon fuch an inrorma^
tion ; the judges being equally divided in
opinion upon the queftion, whether a new
trial can be granted after an acquittal upon an
information in the nature of a ^uo Warranto ?
In the cafe of Rex v. Jones\ Trin. 12 G. i.
wherein the fame queftion arofe ;. a new trial
was not granted, the court being equally di-
vided in opinion upon the queftion.
Anonymous.
The firft
weekly pay. TTPON a motion, for difcharging the
mentto apri- \J defendant out of prifon, it appeared;
fonerhasare- that notice had been given to the defendant,
trofpea to the ^pon the 3 ift day of March, that the plaintiff
day of no- would pay him two (hillings and four pence
per week } that upon the 4th day of Jpril,
two
Trinity Term 27 Geo; 2. 1755. 103
two fliillings and four pence were paid to him,
and upon the 14th day of jlpril two fliillings
and fourpence.
A rule was made for difcharging the defen-
dant.
And by the court — ^The firft weekly pay-
ment to a prifoner has always a retrofpeit to
the day of' notice; and as the weekly pay-
ments to a iH-ifoner are to be made upon the
firfl day of every week, the prifoner muft be
difcharged ; becaufe the fecond weekly pay-
ment was not upon the feventh day of ^
/i:
Rex veff. Swimmer.
UPON aruletofliewcaufe, why an in- Binding a
formation fliould not be filed againft poor child to
the defendant, it appeared ; that the defen- ^^'"^^ ^^ ^^.
dant was a parifli officer; and that he had EH^^^^^
bound three poor children to ferve as ap- js unlawful.
prentices in foreign parts, and hadfent them
thither.
The court fliewed an inclination to make
the r\:^le abfolute ; the offence being deemed
kidnapping : But upon an undertaking of the
defendant, to have the children badk by a
certain time, it was difcharged.
Jemiings qui tam veff. Wil'fon and
two others.
UP O N a rule to fliew caufe, why there judgment as
fhould not be judgment as in the cafe of in the cafe of
a Non/uit, it appeared ; that one of the defen- a Tionfuit,
dants had not appeared ; and that the two ^^g^5 "^^ to
who had appeared and pleaded both joined in }^^r^\7h' d"
the application. ^dantl aV
The nilc was difcharged* ply for it.
And
104 Trinity Term 27 Geo. 2. 1753*
And by the ccmrt — ^It has been faid ; that
this cafe differs from the cafe of (D) Watjim
qui tarn v. *Jackfon and others^ HiL 25,6. 2. in
as much as one of the defendants, who had
appeared and pleaded, did not in that cafe
join in the application : But there is no reafon
for the court to depart, on account of this
difference, from what was then holden ; for
the ground of the opinion of the court in
that cafe was, that unlefs all the defendants
in an aAion apply for judgment as in the cafe
of a Nonfuit^ the court ought not to give fuch
judgment. It has been faid; that if judg-
ment as in tfie cafe of a Nonftdt cannot be ob-
tained, becaufe one of the defendants in an
adioD has not appeared, a vexatious plaintiff
may always make fome friend a defendant,
upon whom he can prevail not to appear,
in order to prevent the obtaining 0/ fuch
judgment by the defendants who have ap-
peared: But this argument does not hold
ftronger in the prefent cafe, than it would
have done in the cafe of Wat/on qui tarn v.
Jack/on and others ; it being juft as eafy, for a
vexatious jdaintiff to make fome friend a de-
fendant^ upon whom, if he do appear, he
can prevail not to af^ly fcwr judgment as in
the cafe of a Nonftdt^ as it is to make fome
friend a defendant^ upon whom he can pre-
vail not to appear*
(D) Ante ]»ge 22.
Michaelmas
*o5
Michaelm^$ Term,
a; Geo. a. 1753.
Sir William Lee, Chief Juftice,
S^r Martin Wright, 1
Sir Thoraas Denifon, \yujlices.
5ir Michael Fpfter, \
JRex %>/^rJ. The Corporation of Scarbo-
rouglv
UP O N a niQtipji for a Mandamus^ to the ^^ fecond
corporation of Sfarboromhj for pro- Mandammht
.ceeding to the eleftion of certain officers, it ekaingcorpo-
appeared ; that fuch ^ Mandamus^ as was now ^^^J^ oflicers
moved for, had been awarded two days be- be\wa^ded,
fore upon the application of another perfon. upon a pre- '
The court refufed to award a fecond Man- fumption that
danms. the firft will
Andbvthecourt-^It has been fuggefted as ^ ^F^^^^
aground for the prefent .motion ; that the
perfon who applied for the former Mandamus
will f\jpprefs it : But as it is not to be pre- /
fumed, that any perfon will dare to fupprefi
a writ of this court, it is improper to award
a feco|id Mandamus.
P Rex
;*!?-
io6 Michaelmas Te^m 27 Geo. 2. 1753?
Rex ytff. The Corppradpn of Haflemcrfe,
Ifth^rcbe TJPON a motion for z Mand^ tq
delay in oliey- • the corporation of Hq/lemere^ for pro*
ing a Jforn^ ceeding to the eledion of certain officers, i|
tnui for ctea- appeared } that fwch a Mandamus ^ as 'Fas ijow
twn^^^rV ^^^^^ ^^^» ^^^ ^^^'^ already awarded upon
afcc<Mid^^. !^^ application of another perfpn.
danmt oagh( The court fTcfufed to award a fecond Msm
p) be a- damus : But a time for proceeding to the dec-
yarded. ^Jqjj^ ^j^g ordered t0 be infertedin the formef
Mandamus.
A rule was likewife made, whereby it was
ordered; that the notice of the eledion
fhould be given by the under-fheriflP.
At another day, it appearing, that the tuq|6
for proceeding to the eleftion was pafled, and
that no notice of the ele<^on had been given
by the under-flieriflF, a fecond Mand^mm y9^
awarded.
And by the court— If it had appeared upon
the motion for a fpcond Mandamus ; that ther^
was good ground to fufped delay in proceed-
ing under the firft, the court would then have
awarded a fecond. It does now appear, that
there has been delay in proceeding under the
jSirft, and confequently it is now proper, th%l
a fecond Mandamus fhould be awarded.
Me^\Lefi
u
Michaelmas Term ^7 Geo. 2. 1753* 107
Methiiea i>etf. Martin^
P ON krtile tb Ihcw caufc, why a funl
of mondy paid by the defendant, fhduld ApriTatemaa
not be repaid with cqfts, it appeared; that in one of the
the defendant was a private man in brie of thi J5?®P* ^ .
troops of life guards j and that, being arreft- ^^^ ^^^^ J^
ed for a debt under ten pounds, he paid the be arrefted
debt in order to obtain his liberty. for a debt on-
One queftioil was, Whether the defendant ^^^
be fuch a foldier, as is by 26 G. 2. c. 5. ex« P®*"""*
empted from being liable id an arfeft fbt 1
debt under ten pounds ?
Wright J* Denifon J. (Lee Ch. J. being ab-
fent) were of .opinioii that he fe.
And hyWri^t J. it is declared by that fta^
tttte, ** that tioperfon, who fliall be lifted, or
<« ihall lift himfelf as a volunteer in his Majef*
*^ ty's iervice as a foldier, Ihall be liable to
be taken out of his Majefty*s fervice by any
proceis, other than for lome criminal matter,
*• unlefs for a real debt of ten pounds.'*
Fojier J. inclined to be of opinion, that as
a perfon, inftead of receiving money, pays a
confiderable fum upon being admitted as a
private man into a troop of life guards, fuch
perfon is not a foldier within the meaning of
that ftatute.
At another day, a certificate being produc-
ed from the commifiary general's office, that
the defendant did lift himfelf as a volunteer ;
and it appearing, that foon after he lifted him-
felf, the articles of war were read over to
him i and that the oath dire^ed to be admi-
P 2 nifiered
ci
io8 Michaeknis Term ^7 6e6. n. t7$3.
niftered to a foldier by a jufticc of the peace
was taken by him, Fq/ier J. concurred in opi-
nion with the othftr jiifttces.
Another qneftion was, Whether, although
the defendant would, while under the arreft,
have been entitled to the difcharge of his pen.
fon, he be now entitled to have the money
paid to obtain his liberty repaid ?
It was holden that he is.
And by the court It is equally ttntciiZ'
ble, that the money paid by the defendant to
obtain his liberty Ihould be repaid, as that his
perfon, in cafe the application had been on
that account, ihould have been difcharged*.
Rex verf. Boys.
rornl^Ketfor 1" T ^ ^ ^ a rule to fliew caufe, why an in-
not paying the vJ diftment fliould not be quaflied, it ap-
cofts ordered peared ; that the indictment was for difobe-
^° ^A'^h^ "^" ^^^^^^ ^^ ^^ order of feffions, whereby cofts
hag an appSl .^^^^ ordered to be paid by the defendant upon
to a Poor's ^^^ difmiffion of an appeal to a Poor's rate.
rate. The rule was difcharged.
And by the court — It is in the general true,
that difobedience to an order of feffions is ati
indiftable offence.
It has been faid ; that as the juftices of a
court of quarter feffions are only empowered
by the i.y G. 2. c. 38. to order cofts to be paid
upon an appeal to a Poor's rate, in the fame
manner as they are by the 8 ^ 9 W^. 3. c. 30.
empowered to do upon an appeal to an order
of removal, an indidment does not lie, for
not
Michadftgtt s TcfW oiyG^b. a. 1753. i<»0
rim ipfeyftig A* t?yfls atflcfrtd t6 b^ paid tff^tfii
an appeal to a Pobr's *atc ; wnothcr remedy
by diftrefs being given by the 8 Ssf 9 fT. 3. for
the cofts ordered to be paid upon an appeal to
an order of tetmr^al: But this objection is
not well founded ; for the remedy by diftrefs
fe onlv git^n, where thfe perfon ordered to
pay the cttfts livte dut df the jutifcfiaion of
the couit.
Archer verf. Eliard*
UP O N a rule to &ew caufe, why the de- An^ affidavit
fbndant fiiould not be difcharged on «l»at money it
filing common bail, it appeared; that the af- due upon the
fidavit for holding to fpecial bail was, that the Eunc^
defendant is indebted to the plaintiff upon a fuffident for
bond in the penalty of one hundred pounds ; holding to
and that the bond was a bond for perform- ^P^^*^ ^*
ance of covenants.
The rtile was made abfolute.
And by the court*-*This affidavit is inAiffi-
cien't, for want of fliewing iomt particular
breach or breaches of covenant, on account
of which the fum of ten pounds is due to the
plaintiff. In the cafe of Booker v. Friend^
Trin. 24 Eff 25 G. a. in this court, an affida-
vit, that the defendant was indebted to the
plaintiff in the fum of twenty pounds, upon
"breach of articles, was holden to be infulffici-
fent for holding to fpecial bail ; becaufe no
£ articular breach of the articles was fbewn.
: an aftion be brought upon a bond for the
payment of money, it is not enough, that the
affidavit for holding to fpecial bail fliew the
penalty of the bond : But it muft likewife
fliew.
no Michaelmas Term 27 Geo. 2. 1753.
Ihew, that the fum of ten pounds is due upon
the bond for principal and intereft*
Wigan verf. Holmes*
Judging* ai T T P O N a motion for judgment as in the
in the cafe of ^J cafe of a Nonfuit^ it appeared ; that a
a Nrnfiatf material fa^ contained in a return to a Math
may be given j^^,^ ^^ traverfed : and that iffue was join,
where the re- , ^u ^ _r
turn to a ^^ ^P^n the traverfe.
Mimdamut is Wright J. C^^^ Ch. J« being abfent) at firft
trayerfed. had fome doubt, whether the ftatute, by
which the court is empowered to give judg-
ment, as in the cafe of a Nonfmt ^^ m any ac-
** tion between party and party," does ex-
tend to a traverfe of a return to a Manda-
mtisf
But it was obferved by Denifon J. that it is
by the 9 Ann. c. 20. declared; that if any ma-
terial fad contained in a return to a mandamus
fliall be traverfed, fuch further proceedings
ihall be had thereupon, as if an action had
been brought for a ralfe return.
A rule was made to fhew caufe, which no
caufe being fhewn, was afterwards made ab-
folute.
Rex verf. Harrifon.
If the faifts, T T P O N a rule to fliew caufe, why an at-
upon which a \J tachment fhould not bte awarded, it ap-
rule to fhew peared ; that every fad, charged in the affida^
are exprefsly ^^ upon which the rule was made, was par-
denied, the ticularly and exprefsly denied in the affidavit
praaice is to upon which caufc was fhewn.
difcharge the The rule was difcharged.
""^ And
Michaelmas Term 27 Geo. 2. 1753. m
And by th^ court — ^If all the fafts, charged
in th^ affidavit ypoa which a rule to Ihew
caufe is made, are pofitively and fo exprefsly
denied in the affidavit upon which caufe i3
Ihewn, that if the denial be falfe, an indict-
ment will lie for perjury, it is the courfe of
the court to difcharge the rule, and leave the
party, upon whofe application it was obtained,
1^0 profecutc for perjurjr^
Anonymous^
UPON a motion that the defendant might A St^jiJau
be difch^rjgped out of prifon, it appeared; awarded, be-
that an adioi) qm tarn had bepn brought againft had be^^S^
the defendant for tlje penalty of one hundred proceeding*
pounds, gif en by the 6 55* 7 PF. 3. r. 6. for agaioft a dc-
having married two perfons without a licence^ fcndaot inpri-
or without the publication of bans; that he f«>n^«nW
had been committee} for want of appearing, "*^
and had lain in prifon four months ; and that
there had been no further proceeding in the
^£lion.
A rule was made, that, upon an appear-
ance being entered for the defendant, a Super^
Jedeas fliQuld be awarded.
And by the court— As tl^ere has been no
proceeding againft the defendant within four
months, he is, upon an appearance being en-
|;e):ed, entitle4 to a Su^erjedeas.
Rpx
112
Mkb^elwswJ Term »7 <?«<>• «a »753'
/
^"^forTu" TT PON a motion, for le^ye to fik w in-
' w! o'^n ac. ' ' formation for a Uhd, it jn^^^jped ^ tb^t,
coJntdf what after a nerfon 1)^4 be^n oammrttcd tq ^(on
was contained under tiie warrant of ^ j]afti(;e of the puea^^,
>"*" *^^?vit, the defendant, another jjiftice of the peace,
rcftieo, granted a warrant of Superfedeas ; and that
complaint being m?ide of this to the Lord
Chancellor^ the defendant exhibited an affi-
jjclaYit in excyfe of himfejf. The gyoiu^d of
the prefent motion was ; that ^tvers ms^tt^^
contained ia this a^davit were impertinent,
and amounted to a Hbel upon the jiii(^ice ^y
whom the perfon was coinmitted.
The couj-t rcfu&d to make a rule to &ew
wufe*
And by the court — There is no inftajuce erf
this court giving leave to file an information
in a cafe like the prefent. It is not ufual for
any court to examine minutely all th^ mat-
ters contained in fuch an affidavit : Byt if it
i?v«ere proper to do this, aad to give redrefi in
the prefent cafe, the application for it ought
to be to the court wherein the aj^dayU was
e^iiibited) and not tp this cou)rt»
Jiilary
»i3
Hilary Term,
27 Geo. 2. 1754.
Sir William Lee, Chief Juftice,
Sir Martin Wright,
Sir Thomas Denifon,
Sir Michael Fofter,
Schomberg verf. Naflu
IN an aftion of debt, the plaintiff declared ifacoach-
upon an agreement entered into by the maker ha»a-
defendant, a coachmaker ; by which he was, W^^^}^ ^?^
on the penalty of one hundred pounds, to ^^**he7s
find a chariot for the plaintiff, and keep it in bourfdtotake
repair for the term of five years; and the notice when
breach affigned was, that the chariot found *^ .^"^^^ ^^'
by the defendant did, during the term of five ^^'
years, break down for want of being kept in
repair.
The defendant pleaded ; that he did at all
times, fince the agreement was entered into,
repair the chariot when notice was given to
him that it wanted repair \ and that he is
(^ ready
114 HibryTerm 27 Geo. 2. 1754.
ready to repair it during the refidue of the
term of five years, whenever notice fhall be
given to him that it wants repair.
Upon a demurrer to this plea, the queftion
was, Whether it was incumbent upon the
plaintiff, when the chariot wanted repair, to
give notice thereof to the defendant ?
It was holden that it was not.
And by the court — ^The defendant, being
coachmaker^ was a much better judge when
the chariot wanted repair than the plaintiff:
But if this were not fo ; as the defendant was
, bound by the agreement to keep the chariot
in repair, it was his duty to take notice, from
time to time, what repair it wanted, and to
take care that it viras in repair.
Rex verf. Kendrick.
If contempts- T T P O N a motion for an attachment, it
ous words arc \^ appeared ; that the defendant, upon
fpoken of the feeing ferved with procefs, had fpoken con-
^°T*-1? ^\^ temptuous words or the court,
be awarded -^^ attachment was awarded,
in the firftin- And by the court — ^The diftindlion is, that
fiance. where contemptuous words are fpoken of the
court, an attachment is to be awarded in the
firft inftance : But where the words are fpo-
ken of the procefs of the court, there is to be
a rule to fliqw caufe.
Hawkins
Hilary Term 27 Geo. 2. 1754. 115
Hawkins verf. Eafterbrooke.
IN a cafe referved, in -an a6lion of debt upon An a^ion lies
a bond, it was ftated ; that the penalty of upon a cove-
the bond was twenty pounds ; that the con- nant, that an
dition of the bond was, that John Eqfter^ ftal'rnot'ab-
brookcj fon of the defendant, fliould ferve the ^^^^ him^lf
plaintiflF as an apprentice four years, and not from his maf-
abfent himfelf during that term from tli^ ter's fervicc,
fervice of the plaintiflF, without leave; that although his
the plaintiff alledged in his declaration, that ^^y" u^" af-
yohn Eafterbrooke did ox% a certain day during ^^^ having ab-
the term, abfent himfelf from the fervice of fented himfelf
the plaintiflF without leave, and continued ab-
fent to the qnd of the term ; that the defen-
dant pleaded, that John Eafterbrooke did not
abfent himfelf from the fervice of the plain-
tiflF ; that iflFue was joined upon this plea, that
at the trial of the iffue it was proved, that
John Eafterbrooke did abfent himfelf from th^
fervice of the plaintiflF during the term, and
jhat another perfon was hired, during his ab-
fence, to do the bufinefs which h^ ought to
have done ; and that it was likewife proved,
that John Eafterbrooke^ after having been fome
time abfent, returned to the plaintiflF, and
was received and employed by him.
The queftion was. Whether the adioa
could be maintained ?
It was holden that it might.
, And by fFr/g-A/ J, (LeeQh. J, being abfent)
it has been faid, and very truly ; that the re^
ceiving of a feryant, after having abfeated
himfelf, does fo far purge the abience, that
it fhall not prevent his gaining a fettlement ;.
and, perhaps, \\\% abfence in the prefent cafe
Q^% was
ii6 Hilary Term 27 Geo. 2. 1754.
was fo far purged by the fubfequent recep-
tion of the apprentice, that it would not have
been a caufe of difcharging him : But if this
were fo, it would by no means follow, that
the prefent aftion does not lie.
And by Denifon J. If an a6^ion of cove-
nant be brought, upon a covenant that
an apprentice fliall not abfent himfelf from
his matter's fervice, the receiving of the
apprentice after having abfented himfelf
ought to go in mitigation of damages : But
if a penalty be agreed upon, in cafe an ap-
prentice fliall abfent himfelf from his mafter's
fervice, an a6lion of debt lies for the penalty
upon any abfence. It was not neceflary for
the plaintiflf to alledge a continuance of the
abfence ; in as much as, his right to recover
the penalty was not waved by the reception
and employing of the apprentice, after he
abfented himfelf.
And by Fojier J. the fingle queftion is,
Whether John Eajierbrooke was abfent to thq
prejudice of the plaintiflF: Which he certainly
was ; for it is ftated, that another perfon was
hired during his abfence to do the bufineis
which he ought to have done. The opinion,
that the receiving of a fervant, after abfent-
ing himfelf from his mafter's fervice, does fo
far purge the abfence that a fettlement may be
gained, is founded upon a fuppofition, that
the relation of matter and fervant continued
during the abfence.
Saxby verf. Kirkus.
The iffijing of TN an aftion of debt upon a bail bond, the
procefs, un- X plaintiff* alledged in his declaration ; that
der which a a certain bill of Middle/ex iffued againft J. S.
b^'^^^^rrefted ^^^^ ^' ^' ^^^ arretted thereupon ; and^ that
mavl^Tra^ ' the defendant entered into the bail bond.
Tcrfed- The
Hilary Term 27 Geo. 2. 1754. 117
The defendant pleaded that fuch a bill of
Middlefsx did not iffue.
Upon a demurrer to this plea, it was holden
to be good.
" And by Wright J. (Lee Ch. J. being abfent.)
At the common law the fheriflF could not take
a bail bond, and the 23 H. 6, c. 10. by which
he is empowered to do it, does only empower
him, when the defendant is in cuftody by
virtue of a legal procefe.
It hits been faid ; that in the cafe of Watkins
V. Parry J Trin. 7 G. i. it was holden upon a
demurrer, that the arreft is not traverfablc
in an a6lion upon a bail bond, and it was with
good reafon fo holden ; for the confequence,
if the arreft were traverfable in fuch adion,
would be, that a bail bond would never be
good, unlefe the party, againft whom a pro-
cefs had been iffued, were expofed by an ac-
tual arreft : But it by no means follows, that
the iffuing of the procefs is not traverfable.
In the prefent cafe, the defendant had an un-
doubted right to traverfe the iffuing of the
bill of Middle/ex ; for if fuch a bill did not
iffue, the bail bond is ipfofado void, andcon-
fequently the plaintiff has no ground of ac-
tion.
After this opinion was delivered, a motion
was made for leave to withdraw the demurrer
and amend.
The court refufed to make a rule to fhew
caufe. ^
And by Wright ]. it is not ufual to give leave
to amend, after a demurrer has been argued,
and the opinion of the court is known ; and
it is certainly improper to give leave in the
prefent
ii8
Hilary Term 27 Geo. 2. 1754.
The names of
the pcrfons
iotended tc be
rated, ought
to be menti-
oned in the
notice of ap-
peal to a
roor's rate.
prefent cafe, it being an a^lion againft bail,
whom the court is always inclined to fa-
vour.
Rex verf. The Churchwarden's and Over-
feers of St. Helens, Abingdon.
UPON a rule to fliew caufe, why a Poor's
rate fhould not be quaihed, it appear-
ed; that a court of quarter feffions, upon
hearing the appeal of Spinage and others^ who
complained of being aggrieved by divers per-
fons being left; out of a Poor's rate and other-
ways, had ordered the rate to be amended,
by inferting the names of fixteen perfons, and
by ftriking out the name of one perfon.
The rule was made abfolute.
And by Wright J. (Lee Ch. J, being abfent)
it has been objefted ; that the names of the
perfons intended to be rated were not menti-
oned in the notice of appeal ; and we are of
opinion, that this objection is well founded.
It is doubtful, whether the court had a power
to infert the name of any perfons in the rate,
unlefs the names of the perfons intended to
be rated were mentioned in the notice of ap-
peal ; for the power of amending a Poor's
rate, which is given to a court of quarter fef-
fions by the 17 G. 2. c. 38. is confined to the
amending it in fuch manner only as fliall be
neceflary in giving relief. There is another
reafon, why the names of the perfons, in-
tended to be rated, ought to be mentioned in
the notice of appeal to a Poor's rate ; namely,
that the parifli officers, to whom notice of
the appeal is to be given, may come prepared,
to Ihew why thofe perfons were not rated.
It
Hilary Term 27 Geo. 2. 1754. 119
It has been objefted ; that the court had not
a jurifdiftion to ftrike the name of any per-
fon out of the rate ; it being no part of the
complaint, that any perfon was rated who
ought not to be rated : And we are inclined
to be of opinion that the court had not. But
if it fliould be admitted, that under the word
otherways in the complaint the court had a
jurifdiftion as to this, we are of opinion, that
the name of the perfon intended to be ftricken
out of the rate ought to be mentioned in the
notice of appeal, that the parifli officers may
come prepared to fliew why that; perfon was
rated.
Rex verf. Blower.
IN an indidment for a nufance, the defen- it is not nc-
dant was alledged to be of the parifli of ceflary, in an
Shepey; and the nufance was alledged to be indiament for
inahighwayJnthepariaofS^^^^^^ \^^:i;:,.
The defendant pleaded m abatement ; that (hew in which
there are four vills in the parifli of Shepev ; of two vills in
and that it is not fliewn in which of the vills * P^ri^ ^^^
the highway is. ^ ^ highwayis.
Upon a demurrer to this plea, it was holden
to be bad ; and judgment of Refpondeas Oujier
was given.
And by the court — As the defendant is al-
ledged to be of the parifli of Shepey^ it would
haye been a good plea in abatement, that it is
not fliewn of which vill he is ; for it is laid
down 2 Injl, 669. that if there be two vills in a
parifli, the addition of the parifli is not fuffi-
cient. But although there are two or more
vills in a parifli, it is notneceflary, in an in-
dictment for a nufance in a highway in the pa-
rifli, to fliew in which of the vills the high-
way is,
Harding
I20
Hilary Term 27 Geo. 2. 1754*
The proceed-
ings in an ac-
tion of Tro-
.ver are not to
be (btyed up-
on bringing
the goods in-
to coun.
The recogni-
zance of bail
is forfeited
upon the re-
turn non eft in'
ventus to the
Capias ad Sa^
tisfaciendum*
Harding verf^ Wilkin*
A Motion was tnade, that upon btinging
into court a gold watch and a diamond
ring, for the converfion of which the ^SCion
was brought, the proceedings in an adion of
Trover might be flayed.
The court refufed to make a rule to ihew
caufe.
And by Wright J. (Lee Ch. J. being abfent)
it has been faid ; that in the cafe of (£) Cat*
ling V. Bowlings Eajl. 26 G. 2. in this court, a
rule was made to fliew caufe, why upon bring-
ing a book into court, for the converfion of
which an aftion of Trover had been brought,
the proceeding in the aftion fhould not be
flayed : But the rule tofliew caufe in that cafe,
which was contrary to the ufual courfe of the
court, was granted upon the very particular
circumflailces of the cafe, and the court never
heard any more of that rule.
Grubb vcff. Smithers and Collins.
UPON a rule to £hew caufe, why the pro-
ceedings Ihould not be flayed, it ap-
peared ; that the aftion was brought upon a
recognizance entered into by the defendants,
as bail of J. S. that a Capias ad Satisfaciendum
had iflued upon a judgment againft J. S. to
which the return was non eji inventus ; and
that before there was any further proceeding
upon the judgment, and before the prefent
attion was brought, y. S. died.
The rule was difcharged.
(£) Ante page 80.
And
Hilary Term 27 Geo. 2. 1754. 121
And by the court — ^When the proceeding
againft bail is by Scire Facias upon the recog-
nizance, execution c^n^ot t>e ta)|en out upon
the Scire Facias^ unlefs the return thereto be
Scire Feci j fqr if a Nihil be returned thereto,
execution cannot tie taken out, unlefi th^re
is a return to a fecond Scire Facias : But this
is an indulgence of the court in favour of bail,
tlut they may have <b much further time tp
render the principal, and not a matter of
right I for the recognizance, 2^ is laid down
in the cafe o^ Widmore v. Ctark and Havardj
l^orA Raym. 157: is, in ftriftnefe of law, for-
feited upon the return ofnfn eji inventus to the
Ca^as ad Satisfaciendum. In the prefent cafe
it would anfwer no purpof?, except that of
delay, to ftar the proceedings ; for, theprin-
cipal being aead, there never can be ^ render
of him in difcharge of the d^endants*
Anonymous.
UPON a motion for an attachment, ior lURefcous
refcuing a perfon out of the hands of the be returned by
fherlff, it appearedi that the flieriff had re- 1^^^^^^^,,
turned a Refcous. to be awanied
An attachment was awarded. ^ in the firft in-
And by the court— Whenever a Refcous is ftancc,
returned by a IherifF, an attachment is to be
awarded in the firft inftance.
R Rex
122
Hilary Term 27 Geo, 2. 1754.
Rex verf. Mafters.
An adyer-
tifementy pab-
lifliedbya
hafband con-
cerning his
wife, is not a
libel.
T TPON a rule to fliew caufe, why an infor-
mation fhould not be filed for a libel
upon Anne Stone^ it appeared ; that Anne Stone
was a married woman ; and that the defen-
dant, who was a printer, had printed and pub-
lilhed an advertifement, which was now com-
plained of as a libel, at the requeft of her huf-
baud, in order to reclaim her.
The rule was difcharged.
And by the court — A hufband has a right
to publim an advertifement concerning nis
wife ; and it muft be a very firong cafe indeed,
in which this court will give leave to file an
information for a libel, againft the printer of
the advertifement.
Eafter
123
Eafter Term,
27 Geo. 2. 1754.
Sir Dudley Ryder, Chief JuJKce,
Sir Martin Wright,
Sir Thomas Denifon
Sir Michael Fofter
^ 1
on, y ynfli^^^^*
MEMORANDUM. Sir Dudley Ryder
took his feat, as Chief Jufticc of this
court, the beginning of this term, in the room
oi Sir William Lee^ the late Chief Juftice, who
died during the vacation, after laft term.
Rex i)erf. Berkley and Bragg.
UPON a rule to fliew caufe, why a certio- The king is
rari fliould not iffue to remove an order not bound by
made by the defendants, two juftices of the the ftatute;
peace, it appeared ; that the order was to em- ^hich Jiniits
power ry.r, a glafs bottle maker at 5ri/?./. ^^J^f-
to deduct out of future duties charged upon order of juf^
them, a fum of money fufficient to reimburfe tices of th§
himfelf another fum of money, which was P«*ce.
R 2 adjudged
1^4 Eafter Term 27 Geo. 2. 1754.
adjudged by the defendants to be an over-
charge in former duties charged upon him ;
and that the order had been made above fix
months.
The queftion was. Whether the 13 G. 2. c,
1 8, whereby the time for removing an order
of juftices of the peace by ^Certiorari is limit-
ed to fix months, extends to the king ?
It Was holden that it dote not.
And by Ryder Ch. J. — ^As it is not to be
imagined, that the lung wiH be gtijlty of
vexatious delays, this ftatute, which was pro-
feffedly made to prevent vexatious delays,
occafipned by the fuing forth writs of Certith
rarij for the removal of convictions, judg-
ments, orders an4 other proceedings before
juftices of the peace, does nqt extend to the
king. There is another reafon, arifing from
a requifite of this ftatute, from whence it may
be concluded) that it does not extend to the
kins^; nanidy^ that the party intenditig tofue
form a Gerticrari^ is lo give notice t0 Uic juf-
tice or jufticois of the peace befbre whom tfats
proceeding was j for it has beeii conftantly
holden, that the word party in a ftalUte does
not extend to the king.
Many cafes are mentioned, Plowd. 243, 244.
wherein it has been holden ( that the king i^
not bound by a ftatute, unlefi he be expreSly
mentioned tnerein.
In the cafe of Rex v. Farewell j Eajl.
1 7 G. 2. it "was holdep ; that a 'Certk-
rafi iot removing an indiAment for a nu-
fance'in a highway lies for the king^ al*^
fhough no affidavit has been made, and np
jtecogni^a^cf has been entere4 into, both of
wjiiclj
Eafler Term 17 Geo. 2. 1754* 1115
which arc required by divers fiatutes, when
fuch an indidinent is removed by a fubjeAt
Jluffers Cafe,
UPON a motion agaihft RuJfeU sm attor- Adeedtfait
ney, it appeared that a deed had been hat been deli*
dfelivered to him by a client; and tiiat, not- ▼af«dto«i«.
withftanding an o£Eer had bc«ti made, of pay- ^y^,^
itig him what was due from the client for fees ^ ptTmeoc
iind on other accounts, he refiifed to redeliver of wtet U
the deed, due* ^ ^
A role was itiade for Rtiffil to fliew caufe, ^^^'^i-
why, upon the payment of what was due
from 4^ client for fees and on other accounts^
he ihould not re-deliver the deed ?
And by Ryder Gh, J. — In Howe*s cafe^ HiL
II G. I. in this court, a rule was made for
Hcwe^ an attorney, to re-deliver writings, for
which he had given a receipt together with
an Ymdertaking to re-deliver them on de-
mand; and that in defeult thereof, an at-
tachment ftkould be awarded againft him. A
court of kw ought, in a cafe &e the prefent,
to go as far as poffible againft the attorney, in
order to ddiver the client from the neceffity
of applying for rdief to a court of equity.
As the court heard no more of the rule in
the prefent cafe, it is probable, that the terms
^hereof were complied with. /
Tilt
126 Eafter Term 27 Geo. 2. 1754.
Tilt verf. Bartlet and Wife.
bl^a a?nft° T T? O N a rule to fliew caufe, why an at-
hufbami'and tachmeot fliould not be awarded againft
vi^, and the the plaintiff, it appeared ;* that a rule, for fet-
wife furvivc xSxi^ afijc the proceedings in this a<^on for
2^is"Scd irregularity with cofts, had been made abfo-
tothecofts^ lute; that after the cofts had been taxed,
taxed under \ purfuant to this rule, the defendant Bartlet
ndc of court, died; that a demand of the cofts had, fincc
his death, been made by the other defendant ;
and that the plaintiff had refiifed to pay
them.
The queftion was. Whether the widow be
entitled to the cofts ?
It was holden that flie is.
And by the court-^If in an aflion brought
by hufband and wife there be judgment of
Uonfuit^ the furvivor is liable to cofts; and
fari Ratione^ wherever cofts become due in
an aftion by or againft hufband and wife,
the furvivor ought to receive them. If da-
mages and cofts are recovered in an a&ion
brought by hufband and wife, and the huf-
band die after final judgment, the widow is
entitled to the cofts as well as the damages ;
for thefe muft always go together ; and confe-
quently, as the executor of the hufband is
not entitled to the damages, he cannot be en*
titled to the cofts. It is equally reafonable,
that a woman, who furvives her hufband,
fliould receive the cofts due under a rule of
court, as that ftie fliould receive fuch as are
due upon a final judgment.
It
EafterTerm 27 Geo, 1. 1754. 127
It has been faid ; that in a cafe which has
been cited, wherein the Dutchefs of HamiU
ion was, after the death of the Duke, obliged
to pay cofts due under a rule of court, the
Dutchefe was a party to the rule ; it being a
confent rule, entered into by her together
with the Duke in an ejedment : But the opi-
nion of the court was not founded upon this
diftinflion. It was, on the contrary, ex-
prefely laid down, that there is no difference,
as to the obligation upon a woman, who fur-
vives her huflband, to pay cofts, between
fuch as are due under a rule of court, ^nd
fuch as are due upon a final judgment.
Mills and Another verf. Gregory,
u
P O N a rule to fliew caufe, why a pro- Common fai-
hibition fhould not be awarded to a fuit ^^^^ ™*y J^**^
in the court of admiralty, it appeared ; that wag«,"altho'
the fuit was infiituted by two common failors the (hip had
for wages; and that themip had not failed out not failed out
of the river Thames when the wages became ^, ^^^ "^^^
• , Tbamet >^hen
The rule was difcharged. came due.
And by the court--— -One of the privileges
of fuing for wages in the court of admiralty
is, that two or more mariners may join in a
fuit in that court, and not be put to the in-
convenience of bringing feparate aAions,
which they muft do, if they fue in a court of
common law. In the cafe of Wells v. Ofmondj
6 Mod. 238. it was holden } that a fuit may be
inftituted in the court of admiralty, for wa-
ges which became due after a con tr aft to go
a voyage, although the voyage w^as put off.
Rex
ia8 EaftcrTcrm 27 Geo. a. 1754*
Rex verf. BurgeiS.
A Certltnrm T TP O N a motion by the attorney-general
MindiaSSf U for a C^wr^r/ to remove an ihdiSment,
may"beaW*^^ appeared; that the indiament was for
ed upon the obftnifiing a highway leading through ^ch-
motion of the mond Park, and tnat it was found at an affize
atiorney-genc- j^the county of Surry.
crori ought to be awarded in the prefbnt cafe*
without an affidavit that a private right will
come in quellion ; fuch an affidavit beins;, in
his opinion, required by the 5 fT. ^ M*
C. II.
For the fake of removing this doubt an af-
fidavit was produced, in wich it was fwom,
that the right of the King will come in quei^
tion.
But the other three juftices were of opinio
on, that it was not neceflary to produce any
affidavit.
And by them — ^The affidavit, required by
the 5 fT. &f M. r. 1 1. is only required in the
cafe of an indi£hnent for not repairing a high-
way : Whereas the prcfcnt indidment is for
obftrufting a highway. But if the prcCent in-
diAment were within the meaning of thatfia-
tute : Yet, as the King is not therein tx-
prefsly named, he is not bound thereby, and
coofequcntly the attorney-general might have
moved for a C^r//Vrar/ without produang any
affidavit.
u
Eafter Term 27 Geo. 2. 1754. 129
Rex verf. Goodall.
P O N a motion that the defendant, who ^^ |^ "°^ "«*
wa^ brought up by a Habeas Corpus, ^^M^
might be admitted to bail, it appeared ; that to commit
the defendant was charged upon oath, with fhould appear
having been guilty of an offence made felony >« a^^^rant of
without benefit of clergy ; namely, for being coron"t"^^nt.
riotoufly affembled with divers others, and
for beginning, when fo ajQTembled, to pull
down a meeting-houfe } and that he was com-
mitted for this offence^ by a warrant figned
Thomas Longford, mayor.
The defendant was remanded.
And by the court ■ I t has been faid ; that
it does not appear in the warrant, that Thomas
Longford vir2S a juftice of the peace, or that he
had any authority to commit the defendant :
But we are of opinion ;. that it is not necef-
fary, that an authority tp commit Ihould ap-
pear in a warrant of commitment. .
In the cafe of Elderton and others, 6 Mod*
75. it is laid down by liolt Ch. J. that it need
not appear in a warrant of commitment, that
the perfon who iffued the wgirrant was a juf-
tice of the peace. In the cafe of Rex v. Talbot,
Mich. 4 G. 2. the authority of what is laid
down by Holt Ch, J. in the cafe of Elderton and
others, was recognized; and the following
diftinction, which is, in our opinion, a very
feniible one, was taken ; namely, that in. a
conviction an authority to convicl: muft ap-
pear ; bccaufe convifting is a judicial ad:;
But that an authority to commit need not ap-
pear in a warrant of commitment ; becaufe
the iffuing of fuch a warrant is a minifterial
aft-
S
130
Eafter Term 27 Geo. 2. 1754-
If it be not neceffary, that an authority to
commit ihould appear in a warrant of com-
mitment, the court will never intend a war-
rant of authority in the perfon who iflued
the warrant ; but, until the contrary appear,
will prefume that he had an authority.
The relator
in an informa-
tion in the na-
ture of a ^40
Warranto^ is
liable to cofts
for not pro-
ceeding to tri-
al purfuant to
notice of trial.
The evidence
upon the trial
of court ilTues
may be given
feparately. A
forgery de-
leted.
Anonymous.
ARble to fliew caufe, why the relator in
an information in the nature of a ^0
Warranto fhould not pay cofts, for not pro-
ceeding to trial purfuant to notice of trial,
was made abfolute.
And by the court ^It is by the 9 Ann. c.
20. provided, that if judgment fhall be given
for the defendant in an information in the na-
ture of a ^0 Warranto^ he fhall recover his
cofts againft the relator ; and it appears to be
within the equity of that ftatute, that the
relator in fuch information fhould pay cofts,
for not proceeding to trial purfuant to notice
of trial.
Kemp verf. Mackrill.
UPON the coming on pf the trial of ele-
ven ifTues, fent by the court of Chan-
cery to be tried at the bar of this court, it
was propofed by the council of one fide ; that
the evidence as to every iffuc fhould be gone
through feparately ; and the cafe of The Earl
of Thanet v. Sir Edward Snatchbull was men-
tioned ; in which three of five iffues, fent by
a court of equity to be tried in a court of
law, were tried in three different terms, and
the other two were never tried.
The
Eafter Term 27 Geo, 2. 1754. 131
The council of the other fide made no ob-
je£lion to this propofal : But added ; that as
it will be a material queftion in three of the
iffues, whether the name Mackrill fubfcribed
to three exhibits^ and the dates of thofe ex-
hibits, are of the hand- writing of Mackrill;
it will be proper to examine all the witneffes
which are to be examined as to the hand-
writing of Mackrillj upon the firft iffue in
which this queftion does arife; for that,
otherwife, new witneffes may be adduced as
to this point, which ought not to be per-
mitted.
It was hereupon ordered by the court ; that
the evidence upon every iffue fhall be gone
through feparately ; that each fide fliall give
a lift of thq witneffes intended to be examined
upon any one iffue ; and that all the witneffes
which are to be examined as to the hand-writ-
ing of Mackrillj fliall be examined upon the
firft iffue, wherein the queftion does arife,
whether the name Mackrill fubfcribed to an
exhibit, and the date of the exhibit, are of
the hand- writing of Mackrill.
And by Denifon J.— —It is very proper, that
the evidence upon every iffue fliould be gone
through feparately ; it being abfolutely necef-
fary, that the evidence upon every iffue fliould
be diftinguiflied in fumming up to the jurors,
elfe they will not be able to form a proper
judgment ; and it will be extremely difficult
for my lord chief juftice to do this, if the evi-
dence upon fo many iffues be given promifcu-
oufly.
The material queftion in this caufe was.
Whether the name of Mackrill fubfcribed to
two of three exhibits, and the date of thofe
exhibits, are of the hand-writing of Mack-
rill?
S 2 In
132 Eafter Term 27 Geo. 2. 1754-
In order to prove that they are, feveral
witneffes, who had frequently feen Mackrill
write, and were well acquainted with his
hand-writing, faid ; that the name Mackrill
fiibfcribed to the three exhibits, and the dates
thereof, are extremely like his hand-writing :
But that the manner of the writing is not fo
eafy as he ufed to write.
In order to prove that the name Mackrill
fubfcribed to the three exhibits, and the dates
thereof, are not of the hand-writing of Mack*
rill, and particularly that the dates are not,
three eminent opticians, an eminent engra-
ver, and an eminent writing-mafter were ex-
amined, and agreed in faying ; that they had
meafured the dates of the three exhibits,
which were in all three the fame, namely, the
28 Odober 1729, in nine different manners;
and that every one of the nine meafurings,
was begun and ended at the fame points in
every date ; and that every one did agree fo
exaftly, that two of the dates muft have been
copies of the third ; it being, as they con-
ceived, impoffible for any perfon, either by
chance or with defign, to have written the
throe dates fo exaftly alike, without copying
two of them from the third. They added ;
that upon examining the back of one of the
dates, it appeared to them ; that a jQiarp in-
ftrument.had been drawn over the letters and
figures, in a manner fufficient to make the
^arks of the letters and figures upon a paper
laid under the date ; and that upon the marks
fo made letters and figures exactly agreeing
.therewith might be written : But that if this
were done, the pen muft, in order to make
the written letters agree exaflly with the
marks, be carried flowly over the marks ;
and
Eafter Term 27 Grco. 2. 1754. 133
and confequently, that the manner of the
writing would not appear fo eafy, as if the
letters and figures had been written in the
ufual way of writing.
Some other circumftances of forgery were
proved: But Ryder Ch. J. in fumming up the
evidence to the jurors, obferved that the evi-
dence of the witneffes who had meafurcd the
names and dates was exceedingly material ;
and there is no doubt, that the verdift, which
was that the name Matkrill fubfcribed to three
exhibits, and the dates thereof, were not of
the hand-writing of Mackrill^ was in a great
meafure founded thereupon.
Hiding verf. Stafford.
UP O N a rule to fhew caufe, why the in- f Jaufei^lo
quifition upon a writ of enquiry fliould be given to
not be fet afide, it appeared; that, although the anorncy
the defendant had an attorney, the notice of- ^r agent in
executing the writ had been given only to the ^^ *^
defendant himfelf.
The rule was made abfolute.
Andbythecourt— -If there be a known at-
torney in a caufe, all notices muft be given to
him or to his agent.
Rex
»34
Eafter Term 27660. 2. 1754.
Rex verf. The Inhabitants of Whit-
church.
A fettlement
may be gain-
ed by execut-
ing the annua]
o^ce of bai-
liff of a bo-
roogb in a pa-
nib.
IN an order of feflions it was ftated ; that
about thirty years before the Pauper went
to refide in the pari{h of Overton ; that he was
foon after fworn into the annual office of bai-
liff of a borough in that parifh, and ferved the
office one whole year; that it is the duty of fuch
bailiffto examine weights and meafures, and
to warn perfons to ferve upon juries in a court
leet in the borough ; that the Pauper did fe-
veral times examine weights and meafures,
and did once warn perfons to ferve upon a
jury in the court leet ; that the borough does
not extend to more than a fifth part of the
parifh ; that the authority of thebailiflf is con-
fined to the borough ; and that it is the prac-
tice to appoint new comers into the parilh to
the office of bailiff*, for the fake of colt-ale-
The queftion was, Whether the Patiper
gained afettlement in the parilh of Oi'^r/^;? f
It was holden that he did.
And by the court — ^It is by the 3 fT, fef M.
r. 1 1, declared, that if any peffon who comes
to inhabit in a parilh, fliall execute a publick
annual office or charge in the parilh one whole
year, he Ihall gain a fettlement.
It has been faid ; that as the Pauper did exe-
cute the annual office of bailiff" in only a fmall
part of the parilh, he did not gain a fettle-
ment : But in the cafe of Rex v. The Inhabi-
tants of Fittleworthy Mich. 18 G. 2. it was
holden ;
EafterTerm 27 Geo. 2. 1754. 135
I ' ■ ■■ I
holden ; that a fettlement may be gained by
executing the annual office of tithing man of
a manor in a parifli a whole year, although .
the manor be not co-extenfive with the pa-
rifli ; it not being required by the ftatutc,
that the annual office fliould be executed all
over the parifli.
Trinity
136
Trinity Term,
27 & 28 Geo. 2. 1754*
Sir Dudley Ryder, Chief Jujiice.
Sir Martin Wright, 1
Sir Thomas Denifon, Yyu/iices,
Sir Michael Fofter, J
Mills verf. Long*
A furgeoD of
a (hip may
fue in the
court of ad-
miralty^ for
wages. A
mariner may
fue in the
court of ad-
miralty, for
wages due
upon a con-
traft in wri-
ting entered
into upon
land.
UP O N a rule to fliew caufe, why a pro-
hibition fhouldnot be awarded to a fuit
in the court of admiralty, it appeared ; that
the fuit was inftituted by the furgcon of a
ihip, for wages due upon a contrail in wri-
ting entered into upon land.
One queftion was. Whether the furgeon of
a fliip could fue in the court of admiralty for
wages ?
Ryder Ch, J. Wright J. and Denifon J. were
of opinion that he might.
Fojier J. at firft doubted: But he after-
wards concurred in opinion with the other
jullices.
And
Trinity Term 28 Geo. 2. 1754. 137
And by Ryder Ch. J. — As the furgeon of a
(hip is under the command of the matter; and
is as much obliged, if called upon by the maf-
ter, to affift in navigating the fliip, as the car-
penter, he is to be deemed a mariner. In the
cafe of Hook v. Moreton, Lord Raym. 398, it
is faid ; that the court feemed to be of opi-
nion ; that a mate of a fliip may fue as a ma-
riner in the court of admiralty for wages. In
Madox^s cafe, 10 Mod. 526, it feems to have
been admitted, that the furgeon of a fliip may
fue in the court of admiralty for wages.
Upon confidering all the cafes, we are of
opinion ; that the privilege of fuing in the
court of admiralty for wages, does extend to
every perfon employed on board a fliip, ex-
cept the mafter.
Another queftion was, Whether afuit could
be inftituted in the court of admiralty by a
mariner, for wages due upon a contract in
writing entered into upon land*
It was holden that it might.
And by Ryder Ch. J. — it appears from the
cafe of Opy V. Addifon^ 12 Mod. 38, that al-
though a contraft for wages, entered into by
a mariner upon land, be in writing, the con-
traft, if the writing be not under feal, is only
to be confidered as a parol contrad, and a
fuit may be inftituted in the court of admi-
ralty for the wages thereupon due. But if
there were hei^etofore any doubt as to this
point, it is entirely removed by the 2 G. 2.
c. 36. By par\ i. of that ftatute every mariner
is required to enter into a contract in wri^
ting for his wages : But it is by par. 8. provi-
ded J " that no mariner fhail, by entering
T " into
831
Trinity Term 28 Geo. 2. 1754.
An indidl-
ment quafhed
for want of
jurifdidion in
the court of
quarter fefli-
Ons.
" into fuch contrail in writing, be deprived
*' or hindered from ufing any means or mc-
*' thods for the recovery of wages, againft
** any fliip, the mafter or owner thereof,
** which he may now lawfully make ufe
« of/'
Rex verf. Briftow.
UP ON a motion to quafh an indidment,
found at a court of quarter feilions, it
appeared ; that the charge in the indi£hnent
was, that the defendant aAed as bailiflf of the
borough of Hq/lemerej without having taken
the oath of allegiance, and without having
received the facrament within the fpace of fix
months. As a ground for quafhing the in-
dictment it was faid ; that a court of quarter
feflions has not a jurifdidlion in fuch cafe.
A rule was made to fliew caufe ; which, no
caufe being fliewn, was afterwards made ab-
folute.
Collins ver/l Renifon.
The thro^\ing
down of a
IN the declaration, in an aftion of tref-
, ^^^ ^ pa(s, it was alledged ; that the defendant
which^ a "e^i^° Overturned a ladder, upon which the plain-
fon is ft;.lid. tiff was ftanding, and threw the plaintiff from
ino, is not it upon the ground.
juilifiable. The defendant pleaded; that he was in
poffeflion of a certain garden ; and that the
plaintiff, againft the will of the defendant,
erefted a ladder in the garden, and went up
the kdder, in order to nail a board to the
houfe of the plaintiff; that the defendant for-
bid the plaintiff fo to do, and defired him to
come
Trinity Term 28 Geo. 2. 1754. 139
come down ; and that upon the plaintiff's per-
fifting in nailing the board, he gently fliook the *
ladder, which was a low ladder, and gently
overturned it, and gently threw the plaintiff
from it upon the ground, thereby doing as
little damage as pollible to the plamtiff.
Upon a demurrer to this plea, it was holden
to be bad.
And by Ryder Ch. J. — Such force, as was
ufed in the prefent cafe, is not juftifiable in
defence of the poffeffion of land. The over-
turning of the ladder could not anfwer the
purpote of removing the plaintiff out of the
garden; finceit only left him upon the ground
at the bottom of the ladder, inffead of being
upon it.
And by Denifon J. — As only the ladder was
in the prefent cafe damage feaf ant ^ it was no
more lawful to throw this down, whilft the
plaintiff was upon it, than it is to diftrain a
horfe damage feafanU whilft a man is upon the
horfe's back, which it is not lawful to do.
Rex verf. Stanley and his Bail.
UPON a rule to fliewcaufe, why the pro- a rccognl-
ceedings upon a Scire Facias mould not zance for
be ftayed, it appeared ; that the Scire Facias keeping the
was brought upon a recognizance entered in- P-- - ^^^^^^
to by Stanley and his bail, for Stanley s keep- ^^-^^i^ Jp^^
ing the peace; that the recognizance was en- anyperfon.
tered into in confequence of articles of peace
having been exhibited by J. S. againft Stanley;
and tliat Stanley had been guilty of affaulting
y. N.
The rule was difcharged.
T 2 And
I40 Trinity Term 28 Geo. 2. 1754-
And by Ryder Ch. J.— If the peace have
not been broken by an affault njpon the perfon
who exhibited articles of the peace, the court
will not permit a proceeding by Scire Facias
upon a recognizance for keeping the peace, if
the proceeding appear clearly to be vexatious :
Yet, as fuch recognizance is for keeping the
peace to all the king's fubjefts, as well as to
the perfon who exhibited the articles, the
court will not in a doubtful cafe ftay the pro-
ceedings upon a Scire Facias ; becaufe the
queftion, whether the breach of the peace by
affault ing another perfon did amount to a for-
feiture of the recognizance, may be deter-
mined upon the plea of not guilty to the Scire
Facias.
Rex verf. Williams.
It is a good T TPON a fuggeftion, that no portreeve was
^M^^y ^f elefled for the borough of St. Michaels
cledHn an ^^ ^P^" ^^^ charter day, a mandamus was awards
officerf that ^^5 directed to the lleward of a court leet in
there has been the borough ; whereby he was commanded
aa election. to hold a court leet, and impanel and fwcar a
jury ; and to charge the jury to eleft and fwear
fome perfon into the office of portreeve of the
faid borough.
The return of the fteward to this mandamus
was ; that in obedience to the command of the
writ, he had holden a court leet, and impanell-
ed and fworn a jury 5 and had charged the jury
to eleft and fwear fome perfon into the office
of portreeve of the borough ; that it was found
by the jury that 7. S. was duly eleded and
fworn into the office of portreeve of the bo-
rough upon the charter day \ and that there-
fore no ptrfon could be elefted and fworn into
the office of portreeve of the borough, as by
the wjrit was comin^nd«?d,
The
Trinity Term 28 Geo. 2. 175 4. 141
The queftion was, Whether this return be
good ?
It was holden that it is.
And by Ryder Ch. J. — ^The fteward has paid
obedience to the writ, as far as it was in his
power by his own afts to do it.
It has been faid, that this return is bad ;
becaufe, inftead of being pofitive, it is argu-
mentative : But we are of opinion, that it is
fufficiently pofitive as to the principal fa6l ;
namely, that a perfon was duly elefted and
fworn into the office of portreeve of the bo-
rough upon the charter day. If this fad be
true, there ought not to be any eleAion. If
it be not true, an aAion may be brought for
a falfe return : But at prefent it is by no means
proper for the court to award a peremptory
Mandamus.
Wyndham verf. Bowen*
IN an action of debt upon a bond, the con- A temporal
dition of which was, that the defendant court will
&ould refign a living uponarequeft; the always gire
plaintiflf declared, as adminiftrator with the j|[didalaas^
will annexed oi Catharine Wyndham \ and al- ofafpiritual
ledged, that the two perfons appointed exe- one.
cutors by her will were both dead.
Upon a demurrer to this declaration, it was
holden to be good.
And by Ryder Ch. J. — The council for the
defendant did begin to argue againft the va-
lidity of this bond ; but as it has been fre-
quently holden, that a bond to refign a living
upon requeft is valid, it was improper for the
court to permit that point to be argued.
It
142 Trinity Term 28 Geo, 2. 1754.
It has been faid ; that it is not alledged in
the declaration, that the furviving executor
of Catharine Wyndham died inteftate ; and that
uilefs fuch executor did die inteftate^ the
fpiritual court had not a jurifdi6^ion to grant
letters of adminiftration with the will annexed
to the plainti£F: But we are of opinion ; that
it was not neceffary for the plaintiff to fhew,
that the furviving executor did die inteftate.
It being a fettled point, that a temporal court
ought always to give credit to the judicial
7L&S of a fpiritual one, this court will not in
the prefent cafe prefume, that the fpiritual
court has afted wrong in granting letters of
adminiftration to the plaintiff. It would have
been fufficient, for the plaintiff to have de-
clared as adminiftrator with the will annexed
of Catharine Wyndham ; and confequently the
allegation, her two perfons were appointed
executors by lier will, which was unneceffary,
may be rejefted as furplufage.
Rex verf. Wannop.
ThecRatcof T TPON a rule to fliew caufe, why an in-
theperfonex- U diftment fliould not be quaflied, it ap-
£-2 ban P^^^^^ ' ^^^^ ^^^ indictment was for a forcible
indlamentfor entry ; and that the premifes from which the
a forcible en- expulfion was, were the freehold and inheri-
try tancc of the lady of the manor : But it did
not appear, what eftate the perfon expelled
had in the premifes.
The rule was made abfolute.
And by the court — It appears from the cafe
of Rex Y, Dorny^ Salk. 260. and from an ano-
nymous cafe, I Ventr. 89. that an indiftment
for a forcible entry is bad, if it do not
therein
Trinity Term 28 Geo. 2. 1754. 143
— . — ^
therein appear what eftate the pcrfon expelled
had in the premifes : And it is abfolutely nc-
ceflary that this fhould appear ; otherwife it
will be uncertain, whether any one of the
ftatutes relative to forcible entries does extend
to the eftatc from which the expulfion was.
The 5 R. 2. c. 7. the 15 i?. 2. c. 2. and the
8 H. 6. c. 9. do only extend to freehold cftates;
and the 21 y. 1. r. 15. does only extend to
cftates holden by tenants for years, tenants by
copy of court roll, and tenants by elegit,
ftatute merchant and ftatute fiaple.
Rex ver/1 Boys.
UPON a demurrer to an indiftment, for ^^ india-
refufing to pay the cofts awarded by an mentlics for
order of feffionsupon the difmiffion of an ap- not paying
peal to a poor's rate, it was objefted ; that the *^ ^^^^ a-
charge in the indiftment is not pofitive, but ^^f^^Jf
i_ ^ r •^ 1 T^ i_ • • ^L- order of kffi-
by way of recital : It being in this manner ; ^^5^
whereas the Reverend J. S. did appeal, &c.
this court doth difmifs the appeal as being
frivolous, and doth award twenty fliillings
cofts, to be paid by the Reverend j^. S. to the
overfeers of the poor of the parifh oiRedburn.
This objecHon was over-ruled.
And by the court — It was neceflary to fet
out the order of feffioiis in the indiftment, and
it was proper to fet it out as it is done in the
words of the order: But this is only matter of
inducement ; for the offence charged in this
indiftment is, that the defendant refufed to
pay the cofts awarded, and it is charged pofi-
tively that he did refufe.
Another
144
Trinity Term 28 Geo. 2. 1754.
Another objeftion was ; that as the 17 G.
2. c. 38. by which power is given to a court of
quarter feflions or awarding cofts upon dif-
mifling an appeal to a poor's rate, does only
impower that court to award cofts, in the
fame manner as it is empowered by the 8 Ssf
9 W. 3. c. 30* to do, upon difcharging an
appeal concerning the fettlement of a poor
perfon, an indiftment will not lie in the pre-
fent cafe : Inafmuch as the remedy given by
the 8 &f 9 fF. 3. r. 30. is in the firft place a
diftrefs andfale of the goods diftrained ; and
if the perfon who refafes to pay the cofts have
no goods, he may be committed to prifon for
the fpace of twenty days.
This objeclion was over-ruled*
And by the court — The remedies eiven by
the 8 Eff 9 W^. 3. are only given where the
perfon, who refufes to pay the cofts, lives
out ofthe jurifdidWon of the court by which
they are awarded ; and confequently an in-
diftment, which is the general method of
proceeding againft a perfon guilty of difobe-
dience to an order of feffions, will lie.
KtJiverf. Thejufticesof the Courts of
Quarter Seflions of the County of Surry.
The court
will not make
a rule for the
infpedling of
books, until
a return is
made to a
Mandamus.
A Rule having been obtained for the de-
fendants to fliew caufe, why a Manda-
mus fliould not be awarded, directed to the
juftices of the court of quarter feflions of the
county of Surry ^ for admitting the profecutor
to the office of clerk of the peace of that
county, the court was moved on the behalf
of
Trinity Term 28 Geo. a. 1754. 145
of the profecutor, for a rule to infped and
take copies of the books and records in the
cuftody of the perfon who officiated as clerk of
the peace of tnat county.
No rule was made.
And by the court— If a rule be made to
ihew caufe why an information fliould not be
filed, the court will make a rule for the pro-
fecutor to infecd and take copies of books and
records, as toon as the rule to Ihew caufe b
made : But if a rule be made to ihew cauiie
why a mandamus ihould not be awarded, the
court will not make a rule for the profecutor
to infpeAand take copies of books and records,
until the rule is made abfolute, and a return
is made to the mandamm.
Rex verf. Williams.
UPON amotion, for leave to file an in- ^^^ j,jfo,„jj^
formation againft a goaler, it appeared ; doo againfta
that the goaler had fufiered a perfon, com- goalef* for
mitted upon an attachment for non-payment foft™« »
of coite, to go at large- ^^\^Z'^^
A rule to Ihew caufe was refufed. fy^ *
And by the court — ^The ordinary remedy,
by an a6don for the efcape, b in this cafe
iuiSdent.
U Rex
14^
Trinity. Term ad Gca «. 1754*
Rex w^. Driffield
Anindi^-
ment will not
lie for a
breach of
cx>ntraA«
UPON a rule to fliew caufe^ i^hy the in-
diftment fhould not be quafhed, it ap-
f>eared ; that the indidmcnt was for a c^ieat,
n delivering a quantity of qoab as and for
two bufliels ; whereas the quantity of coals
delivered was, in faft, no more than one
bufhel and three pecka*
The rule was made abfolute.
And by the court— As there was not in
this cafe any falfe token, it is nothing more
than a breach of con trad, and confequently
an indidment will not lie.
ReX verf. Barton.
Th^r«f^
cannot be
ch^ngcid in an
information
for a falfe
return to a
Mandumus,
UPON a rule to fliew caufe, why the Venue
in an information fhould not be chang-
ed, from the county of the town of Notting'
ham to the county of Nottingham^ or to any
other county, it appeared ; that the informa-
tion was for a falfe return to a mandamus i that
the matter in ifftie was, whether there ought
lo be a common council coniSfting of tweftty-
four perfons in the corporation of iVi?///;2fA/x»^ ;
and that there are not in^ the county of the
town oi Nottingham a fufficient number of free-
holders for compofing a jury, who are not
burgeffes of the corporation.
The rule was difcharq:ed.
And
Trinity Term 2S Geo. 2^ ^754* 147
And by the court — ^The cafe of The Mayor
^ Orfordj Salk. 669. has been mentioned;
in which itls faid ; that the court inclined to
diange the venne^ in an action upon the caf(i
for a falfe return to a mandamus : But that
cafe, it being a civil aftion, would not, even
ifthev^K^ had been changed, have been an
authority Ih the pfefcnt cafe.
It hai btin faid 5 that as the information
is, in the pre&ilt cafe, to try the truth 6f i
feturU to a mandamus, it is in the nature of a
4vil aftion: But no cafe has bceh cited j
^herciti the *uenue has httA changed in an iil»
formation.
It is feldom neccflkty, that the perfoiis who
ferf e Upoii juries irt cities, boroughs arid towns
torpOrate fhould b^ freeholders ; and it does
not Appear, that only fuch perfons as are fredr
holders can ferve ilport juries in the town of
ifotfingbam.
Re* i;ef/l Botwright.
UPON a motion tO qtiaih an indiftnient. An India-
it appeared ; that the indiftment was mcnt will not
for expofing to fale the flefli of a bull, which [^^f^.'^f ^"S
the defendant had killed without Wing firft J^fS'L"
baited it, as and for fteer beef. beef.
A rule was made to fhcW caufe ; which,
no caufe being fliewn, was aftei'wards made
Slbfolute^
tJ 2 Rex
poor.
148 Trinity Term 28 Geo. 2. 1754.
Rex vcrf. The Juftices( of phe County of
Middiefex,
Onlyfuch ir jpoN a rule to f|icw caufe, why ^ man-,
pi^^\rc ^ damns fhould not be awarded^ dircfled
towdhipt or to th(^ jufiices of the peace of the county of
▼ills, arc en- Middl^ex^ for appointing ovcrfeers of the
titled to haTc poor for Kentijh TcwUy it appeared; that
fc^'rftJT" ^^""^ifi" ^^'^ ^^ ^^^ ^^^^^ divifiop of the parifli
of Sa Pancras.
The rule was difcharged.
And by Ryder Ch. Jr— Tt has been long
fettled; that the power giyep by the 13 5?
14 Cb. 2.C. 12. of appointing feparate over*
feers of the poor for a Town/bif or Vill in a
parifh, may be exercifed in other counties, as
well as in thofe which are ixientioned in that
ftatute : But it does not appear, that Kentijh-
Town is either a Townjhip ox fill in the pariih
of St. Pancras ; and it was holden in the cafe
of Rex V. The Inhabitants ofWelbech^ J^ich. 14
G. 2. that the 13^14^2. does only extend
to fuch places in parifhes as are Townjhip^ of
Vills. "' '
It has been fai() ; that the pariih of 5t
Pancras is very large, and that the divifion qf
KentiJJj'Town is large apd very populous : But
peither the largcnefs noif the pppuloufhefs qf
a divilion in a parifli, even iJF it were a TWk-
Jhip or F///, is a reafon for the inhabitants
thereof to have feparate overfeers of the poor,
pnlefs it appear, that, by realbn of the large*
pefs of the parifli, they have not reaped^
px cannot reap the benefit of the 43 EHz. c. a,
Fpf
Trinity Term a8 Geo. 2. 1754. 149
For the right of having feparate ovcrfeers of
the poor &r a Townjbip or Vill in a parifh, is
only given by the 136* 14 CA. 2. where the
inhabitants of the Townjhip or Fit//, by realhn
of thelargenefe of the parifh, have not reaped
or cannot reap the benefit of the 43 Eliz. There
is not theleaft ground for faying, that the in-
habitants of the divifion of Kentijh-Town^ if
it were a Townjhip or T///, have not reaped^ or
cannot reap the benefit of the 43 Eli%. It does
on the contrary appear ;' that from the time
of making that ftatute to the prefent time,
they have conjiantly reaped the benefit thereof.
Wiimot verf. Butler and Wife.
UPON a rule to fliew caufe, why the wife A wife may
fhouldnotbedifchar^edoutof cuftody, be taken in
it appeared ; that fh& was In cuftody under a cxecutioi!.
Capias ad Satisfaciendum^ which iffued upon JJ^^" aR^nft
thejudgment in this aftion. her and her
The rule was difcharged. haftmcL
And by the court— In the cafe of Pitts v.
Miller and Wife^ Trin* 15 G. 2. in this court,
it was holden ; that if a wife be in cuftody
upon mefne procefs, which iflued in an ac-
tion againft her and her hufband, fhe is enti-
tled to a difcharge : But that if Ihe be in cuf-
tody under a Capias ad Satisfaciendum^ which
iflued upon thejudgment in jin aAion againft
her and her hulband, {he is not entitled to a
difcharge ; unlefs it appear, that her being in
cuftody is the confequence of fome fraud or
coUufion betwixt the plaintiflF and her huf-
band ; for that execution muft always follow
the judgment. In the cafe of Pitts v. Miller
and Wife^ the cafe of Jackfon v. Gabree and
Wife^ I Ventr. 51. which has been cited and
relied
150 Trinity Term a 8 Geo. 2* 1754.
relied on in the pfefent cafe, was cited and
relied on : But the authority thereof was de-
nied by the court. In the cafe g£ Finch and
wife V. Du4din and wife j Mich. 19 G. a. in
this court ; and wherein the defendant's wife,
being in cuftody, under a Capias ad Satisfaci-
endum which iffued upon the judgment^ a
motion was made that ihe might be difeharg-
cd : But as it appeared ; that endeavours had
been ufed to take the hufband as well as the
wife, the court rcfufed to make a rule for her
difcharge.
Savery verf. Serle.
An ameod- IT TPON a rule to Ihew caufe, why the plain-
meat of the ^^ tifFfhould not have leave to amend his
^^'^J^ declaration, by ftriking out the word Middle-
tcnw, the fi^y ^^^ inferting the word Devon/hire^ it ap-
coofc^uence peared ; that the declaration was of Hilary
of which was term laft ; that the defendant had pleaded;
fW*"^^* and that the confequence of the amendment
^^' would be changing the Venue from Middlefex
to Devonjhire.
Ryder Ch. J. Wright], and Fojier J. being of
opinion, that leave ought to be given to
amend, the rule was made abfolute.
And by Ryder J. — It has been long fettled ;
that the venue cannot be changed ill a dired
way, after the defendant has pleaded : But
thfi court has of late years frequently permit-
ted this to be done in an oblique way by
. amendment.
Denifon J. was of opinion j that leave ought
not to be given to amend.
And
Trinity T«rm a8 Geo. it. 1754. 151
And by him-^Tkc amendment in the pre-
fent cafe will amoupt to the adding of a new
count, which, according to the fettled prac-
tice of the court, cannot be done after two
terms.
Holt on the Denjiie of Simpfbn virf.
Ward.
UPON a rule to fliew caufe, why the ap- The tf tumt
pearance of Ward the tenant Ihould not **°^ 'j^
be fet afide, it appeared j that Sir Harry "^^^^f^^
Slingjbyj landlord of the premifFes in queftipn, tion of cjeft-
had obtained the common rule to appear, and ment, after
be made defendant with Ward^ m cafe he jhctimeal.
Ihould appear; that Ward did not appear: lowed for bi«
^ o- ^W !• 7 i_ ^ •ir'^* * appearance u
that Sir Harry did appear ; that iffue was ^lapfcd.
joined, and the caufe carried down to the afli-
zes in order to be tried ; that at the affizej
an agreement was entered into, for paying off
the money due upon a mortgage by ipftal-
tnents ; that in confequence of this agree-
ment the caufe was not tried ; and that after
all this had pafled Ward entered an appearance.
Wright J. was of opinion ; that the tenant
may enter an appearance to a declaration in
an a6Uon of qeftment, at any time before
judgment is figncd againft the cafual ejeftor.
Ryder Ch. J. Dent/on J. arid f'ojier jf. wer^
of opinion ; that although judgment be not
figned againft the cafual ejeftor, the tenant
ispreduded from appearing to a declaration
in an adtion of ejeftment, unlefe he do appear
before the time allowed to appear in is elapfed:
The rule made upon the motion for judgmeixt
againft the cafual dcAor being ; that m cafe
^ the
152 Trinity Term a8 Geo. 2. 1754.
the tenant do not appear, within the time
therein allowed for his appearance. Judgment
may be figned againft the cafual ge&or.
The rule was made abfolute.
Rex verf. Chatley and Another.
Anindiament ¥" TPON a rule to fliew caufe, why an in-
vill not lie, \J diAment ihould not be quaihed, it ap-
for not mak- peared ; that the defendants were overfeers of
p«>r*«°Itc ^^^ P^^^ ^^ * parilh, and that the indiftment
p^|!j^nt*to an was for difobedience to an order of feffions ;
oixkr of feiE- by which they were reouired to make a new
ons. Poor's rate for the parim.
The rule was made abfolute.
And by the court — Although the court of
quarter feffions, in cafe it fhdl be neceflary,
upon an appeal to a Poor's rate, to quafhthe
whole rate, are required by the 17 G. 2* c. 38.
par. 6. to order the Church-wardens and over-
feers of the poor to make a new rate, and they
are thereby required to make the fame : Yet
an indidment will not lie for difobedience to
an order of fefllons for making a new rate ;
another remedy being given by par. 14. of
the fame ftatute ; namely, " that if any over-
" fcer of the poor of any parifh, townihip
" or place, fhall ne^left or refiife to obey the
** orders and direftions of this aft, or any of
** them, where no penalty is before provided
" by this ad, every fuch overfeer (hall for
" every fuch offence, on oath made thereof
** within two calendar months before two
** juftices of the peace, forfeit for the ufe of
** the poor of fuch parifh, townfliip or place,
** a fum not exceeding five pounds, nor lefs
*' than twenty fhiJlings, to be levied by diftreis
" and
Trinity Term 28 Geo. 2. 1754. ^53
** and falc of the offender's goods, by war-
^* rant from fuch juftices; which fum fhall
** be paid to fome Churchwarden or overfeer
** of fuch parifh, townlhip or place, for the
" purpofcs aforefaid."
Pilkington verf. Hamlin.
UPON a rule to fliew caufe, why the ve- .pj^^ y^^^
nue fhould not be changed, it appeared j ought not to
that the plaintiff was an attorney of this be changed, in
court. an action
The rule was difcharged. ^^^^^^ ^^'^
And by the court — ^The cafe of Biffev. Har- ^e^^ort^of
courty Carth. 126. has been cited ; wherein it which he is an
was faid by Dolben J. that he remembered a attorney.
cafe, in which the venue was changed, altho'
the plaintiff was an attorney: But the opinion
of the other juftices in that cafe was ; that the
venue ought not to be changed in fuch cafe
upon the common affidavit.
It is the part of the privilege of an attorney;
that, if he bring an adion in the court of
which he is an attorney, the venue ought not
to be changed ; and the court will not deprive
him of this part of his privilege, unlefs there
is fome very particular and ftrong reafon fot
doing it.
Anonymous.
154
Trinity Term 28 Geo. 2. 1754.
Anonymous.
A plaintiff,
at whofe fult
a defendant
has been ta-
ken in execu-
tion, may re-
move him in-
to the cufto-
dy of the
marihall.
UPON a rule to fliew caufe, why the de-
fendant fhould not be remanded to the
cuftody of a flierifF, it appeared ; that after
the defendant was in the cuftody of the flie-
rifF, under a writ of Capias ad Satisfaciendum^
the plaintiff removed him by a Habeas Corpus
into the cuftody of the marfliall.
The rule was difcharged.
And by the court — A plaintiff in this court,
at whofe fuit a defendant has been taken in ex-
ecution, may, if he pleafe, remove the defen-
dant into the cuftody of the marflialL
Fox verf. Cope.
Proceedings
oujtht not to
be fct afide
after the vcr-
di(5l, on ac-
count of a
miftakc in the
copy of ihe
dcciaraiion.
UPON a rule to fliew caufe, why the pro-
ceedings fliould not be fet afide for ir-
regularity, it appeared ; that in the copy of
the declaration delivered, there was the word
London where the word Middkfcx ought to
have been : But it likewife appeared ; that the
record of Nift Prius was right ; that the caufe
had been tried ; and that there was a verdict
for the plaintiff.
Tlie rule was difcharged.
And by the court — As the record of Nift
Prius is right, it would be very improper, for
the court to fet afide tlie proceedings, in a
caufe after the merits have been tried, on ac-
count of a miftake in any part of the plead-
ings whilft they were in paper.
Anonymous.
Trinity Term 28 Geo. 2. 1754. 155
Anonymous.
UPON a motion for a trial at bar, it ap- ^ ^^.^ ^^ ^^^
peared; that iffuewas not joined in the ^s not to be
action. granted before
The court refufed to make a rule to fhew iffuc is joined,
caufe.
And by Ryder Ch. J. — ^It is contrary to the
praftice of the court, to grant a trial at bar in
any action before iflue is joined, except in an
aftion of cjeftment ; in which, as iffue is very
feldom joined till the term is over, it would
in the general be too late to apply for a trial at
bar after it is joined.
X 2 Michaelmas
156
Michaelmas Term,
28 Geo. 2. 1754.
Sir Dudley Ryder, Chief Jujliqe.
Sir Martin "Wright,
Sir Thomas Denifbn
Sir Michael Fofter,
an, )r Jujlica,
Harrifon, Chamberlain of the City of
London, verf. Alexander.
D ^j*v°^ 'T^HIS aflion bcinsr brought in the court
\aI\ "" J- of the mayor of the city of London, the-
varded, al- , ^ , , ' ^ r 1 .
though a writ detcndant, who was an attorney or this court,
o£ Superfedeas lucd out a vvrit of rHvilege.
to a writ of The pialntiff, upon beinp; ferved with this
^T^ff^^^* v/rit, obtained a rule to ilicw caufe, why a
writ of Su'perfcdeas fliould not be awarded :
and why a ^vrit of Prccvciaido flioixld not be
awarded.
The
Michaelmas Term 28 Geo. 2. 1754. 157
The court refiifed to award a writ oifuper-
fedeas. A writ oi procedendo was awarded :
But it was by the exprefs order of the court
inferted in the rule for awarding the writ of
procedendo^ that this writ is to be without pre-
judice to the defendant's pleading his privi-
lege in the court below.
And by the court — ^If a writ oi fuperfedeas
ihould be awarded, which would be a deter-
mination of this court, that the defendant is
not entitled to privilege ; and the court below
ihould, upon the derendant's pleading privi-
lege, determine that he is entitled to privi-
lege, or any other court upon an appeal from
that court mould fo determine, there would
be a clafhing of determinations.
On the other hand, if this court fliould re-
fufe to award a writ oi procedendo^ it would be
a determination of this court that the defen-
dant is entitled to privilege ; and as this de-
termination, it being upon a motion, muft
be final, the plaintiff would be thereby pre-
cluded, from having the opinion of any other
court upon the queftion of privilege, which,
it being a queftion of very extenfive confe-
quence, ought to be determined in the moft:
folemn manner. It is however proper, to
have it inferted in the rule for awarding the
writ oi procedendo^ that this writ is to be with-
out prejudice to the defendant's pleading his
privilege in the court below ; left there fliould
be an apprehcnfion, that this court has de-
termined any thing as to the queftion of
privilege.
Enunerfon
,58
Michaelmas Term 28 Geo. 2. 1754.
Emmerfon and Wife verf. Cavendifli,
Vicar General to the Bifhop of
Durham.
RdkiiQg out
of the jurif-
diAionof an
ccclefiadical
coon, is a
goodcaufe of
prohibition.
UPON a rule to fliew caufe, why a prohi-
bition Ihould not be awarded to the
confiftory court of tlie BJfliop of Durham^ it
appeared ; that the rcfidence of the defendant
in the caufe in the confiftory court was out of
the jurifdiclion of that court j namely, in
Scot/and.
The rule was made abfolute.
An xndidl-
mentforpifs-
ingin a roomy
in which two
\iromen were
prefent, ought
not to be
quafhed.
Rex veff. RoUo.
UPON a rule to flicw caufe, why an in-
diftment Ihould not be quaihed, the
charge in the indictment appeared to be ; that
the defendant did unlawfully and. with force
and arms enter the dwelling-houfe of the pro-
fecutor ; and did indecently, unlawfuUy, in-
jurioufly and impudently pifs upon the floor
of a certain room in the faid dwelling-houfe,
in which the wife of the profecutor and tie
wife of y. S. were perfonally prefent ; and
that the defendant had pleaded to the indid-
ment.
The rule was difcharged.
And by the court — It has been faid ; that
this rule ought to be difcharged, becaufe the
defendant had pleaded to the indidment be-
fore the motion was made to quafh it : But
this is no reafon for difcharging the rule ; it
not being an objeftion to the quafhing of an
indictment, that the defendant has pleaded
thereto.
It
Michaelmas Term 28 Geo. 2. 1754. 159
It has been faid ; that an indictment will
not lie for what was done by the defendant.
If it were neceflary for the court to give any
opinion as to this, the opinion would proba-
bly be ; that what the defendant did was con*
tra bonos mores^ and confequently that an in-
didment will lie : But however that may be,
the prefent is by no means a cafe, in which
the court ought to exercife its difcretionary
power of quaihing an indiclment.
Rex verf. Afliton.
UPON a rule to Ihew caufe, why a man- A Mandnmui
damus fliould not be awarded for rellor- awarded, for
ing the defendant to the office of parilh clerk, '""^^^^'^f^X^
it appeared ; that the defendant was appointed ^^e of pa-
to the office by the parfon. n(h clerk.
The rule was made abfolute.
And by Ryder Ch. J. — It has been faid ;
that as the defendant was appointed to the
office by the parfon, his right thereto is an
ecdefiaftical right ; and confequently, that he
is not entitled to a mandajnus^ which is a tem-
poral remedy for reftoring him to the office :
But as a parilh clerk, whether appointed by
the parfon or elefted by the parifhioners, has
a freehold in his office, he ought not to be
removed therefrom without good caufe ; and
it-is by no means proper to determine upon a
motion, whether the perfon, who has been
removed from the office of parifli clerk, was
removed for good caufe.
Denifon J. inclined to be of opinion ; that
the right to the office of parifh clerk is a tem-
poral right.
Fojicr
i6o
Michaelmas Term 28 Geo. 2. 1754.
fofter J. was clearly of opinion, that the
right to the office of parifh clerk is a temporal
right ; and he added, that a parifh clerk, al-
though he were appointed to the office by the
parfon, is a fervant to theparifhioners.
Rex verf. Fifher and Others Juftices of the
Peace for the County of Berks.
An abfolute
rule for a
mandamtu to
juftices of the
peace to al-
low a poor's
rate.
UPON a motion, for a mandamus to the
defendants to allow a poor's rate, it ap-
peared ; that the rate was regularly made ;
and that the defendants had refufed to allow it.
The court had at firft fome doubt, whether
there ought not to be a rule to fliew caufe :
But after a little confideration, an abfolute
rule was made.
And by Ryder Ch. J — It is not proper to
make a rule to fliew caufe in this cafe ; be-
caufe, while the rule is depending, the poor
may fuffer ; no overfeer of the poor being
obliged to difburfe money, until he has ob-
tained a rate for collecting it.
Bowen verf. Barnett.
Special bail
is not always
neceflary, in
an a(5lion of
debt upon a
judgment.
UPON a rule to fliew caufe, why there
fliould not be fpecial bail in an action of
debt upon judgment, it appeared ; that one
of the fpecial bail in the original aftion had
abfcondcd ; and that the other was become
infolvcnt.
TJic rule was difcliargcd.
And
Michaelmas Term 28 Geo. 2. 1754. 161
And by the court — ^It has been frequently
holden ; that if there was fpecial bail in the
original aftion, and the plaintiff in that aclion
bring an a6lion of debt upon the judgment
therein obtained, he is not entitled to fpecial
bail in the latter aftion. As there is a degree
of vexation in bringing an aftion of debt
upon a judgment, fuch an a<flion ought not
to be favoured.
Rex verf. Hood.
UPON a motion to qualh an indiflment. An rndi(a.
the charge in the indictment appeared ment, for
to be ; that the defendant did unlawfully and J^Qocl^ng^io-
injurioufly knock violently at the outer door d^o/^f ^ *
of the profecutor's dwelling-houfe for the houfe, ought
fpace of two hours together ; whereby the not to be
family of the profecutor was greatly difturbed ; quaflied.
and the profecutor's wife wa^ fo much fright-
ed, that {he mifcarried foon after.
The court refufed to make a rule to fliew
caufe.
And by Ryder Ch. J. — It has been faid ; that
as there is not a charge of a forcible entry,
the proper remedy of the profecutor is an ac-
tion of trefpafs: But it is fufficient to fay,
without giving any opinion as to the goodnefs
of the indictment, that it would be very im-
proper for the court to exercife its difcretiona-
ry power of quaftiing an indidment, in a cafe
wherein the knocking at the door of a dwell-
ing-houfe vvas fo violent, fo long continued,
and followed with fuch confequences as it was
in the prefent cafe.
Pantfune^
. • .•."^■.'•- ^-'T'^'^^r •>
162 Michaelmas Term 28 Geo. 2. 1754.
Pantfune verf. MarfhalL
The plaintiff, TN an aftion, for the malicious profecution
in an aaion JL of an aftion, the plaintiflf declared ; that
formdiciouf. ^he defendant levied a plaint againft him in
I T'«""°^ the court of Newcajile upon Tyn^ ; that in or-
an action, _ 1,1 1 1. irr '^/••iim 1
muft (hew that der to hold the plaintiff to Ibecial bail, the
the former defendant madCvan affidavit, that the plaintiff
a(5Hon is de- was indebted to him in the fum of two huur
tcnmned m jj.gj pounds, whereas the plaintiff was not in
Your. £^^ indebted to the defendant in the fum of
two hundred pounds, nor in any other lum
of money ; that upon this affidavit the plain-
tiff was arretted, and for want of putting in
fpecial bail was confined in goal ; and that
2tfter being fome time confined, he was dif*
charged without putting in fpecial bail ; be-
caufehe was not bound, either by the law of
the land, or by the cuftom of the court of
Newcajile^ to put in fpecial bail.
Upon a demurrer to this declaration, the-
queftion was, Whether it was neceffary for
the plaintiff to alledge, that the aAion in the
court of Newcajile was determined in his fa-
vour, before the prefent a6iion was brought ?
It was holden, that this ought to have been
alledged.
And by Deni/on J. — ^It is a fettled point;
that if an aftion be brought for malicioufly
profecuting an indiftment, the plaintiff muft
alledge, that he was acquitted before the ac-
tion was brought.
It IS alledged in the prefent cafe, that the
plaintiff was difcharged without putting in
fpecial bail : But it does not follow, that the
demanding of fpecial bail was malicious j for
the
•■ ^^v •»r'--,'v- trty -.. ^ :• ,-.^ '^^f t^:<n^"r
Michaelmas Term 28 Geo. 2. 1754- '^3
the difcharge might be by reafon of fome de-
feci in the affidavit for holding to fpecial bail,
and not for want of a fufficient debt to hold
thereto. In the cafe of Skinner v. Gunton and
Others^ i Saund. 228. it is faid ; that although
the want of alledging, in an aftion like the
prefent, that the former aftion was determin-
ed in favour of the plaintiff, either by a nori-
fuitj difcontinuance or verdid, would be
cure4 by a verdid, it is bad upon a demurrer.
In the cafe oi Reynolds v. Reynolds^ Mich. 22.
C 2. in this court, the authority of the cafe
of Skinner v. Gunton and Others^ was recog-
nized ; and it was faid in the latter cafe, that
a&ions for malicious profecutions ought not
to be encouraged.
Rex verf. Davis.
UPON a motidn in arreft of judgment in An indidl-
an indiAment, it appeared ; that the mentwill lie
defendant was an overfeer of the poor ; and ^^^*r g^^f^^
that the charge in the indidment was, that ^^^ receiving
he refufed to receive a Pauper^ who was re- a Pautery re-
moved by an order of two juftices of the peace, moved by an
The rule was difcharged. ?'^' ^^ V^u
And by Ryder Ch. f— It has been faid ; J^J,,!'' ""^ ^ ^
that as the offence of an overfeer of the poor,
in not receiving a Pauper removed by an or-
der of two juftices of the peace, is a new of-
fence created by the 3 ^ 4 PT. Sff M. r. 1 1*
an indiftment will not lie, another remedy
being given by that ftatute ; namely, " that
** if any overfeer of the poor fliall refufe to
*' receive a perfon, removed by warrant of
^* two juftices of the peace from one county,
** city, or town corporate to another, he (hall
** forfeit the fum of five pounds, to the ufe
- y 2 'Vof
ywJffNPV JJfli w*,^i^li..w. '
164 Michaelmas Term 28 Geo. a. 1754?
•« of the poor of the parifh from which the
f- faid perfon was removed, to be levied by
5« diftrefs and fale of the offender's goods, by
5' warrant under the hand and feal of any
5' jufticc of the peace of the county, city or
J* town corporate, to which the faid perfon
5* was removed; and for want of fumcient
^* diftrefs, the faid juftice fliall commit the
f * offender to the common goal, there to re-
5' main without bail or tnainprize for the
5^ fpace of forty days/*
We are of opinion ; that, as a power of
-removing i perfon hkely to become chargea-
ble to a parifh is given to two juftices of the
peace, by the 13 & 14 C. 2. c. 12. the not re-
•ceiving of a p\, fen, removed by an order cxf
two juftices of the peace, is an offence againft
that ftatute, and confequently an indictment
will lie. But if this were a new offence, creat-
ed by the 3 Esf 4 MT. ^ M. c. \ |. yet an indift-
ment will, in our opinion lie, in (:afe the
removal was to a place within the jurifdiclion
of the juftices by whom the order of removal
was made, the remedy by the latter ftatute
feeing only given, where the rqrppval was to
a place out of their jurifdiclioji. It does not
appear from the indidment in tlip prefent cafe,
that the removal w^as to a place out of the ju-
rifdidion of the juftices by whom the order
was made ; and if intendment were peceffa-
ry, the court would in fupport of the verdift
intend, that it was to a place wjthin their jur
Hfdiftion. '
Rex
~\-r"ii,;mif^:-
Michaelmas Term 28 Geo. 2. 1754. 165
Rex verf. Read«
UPON a rule to fliew caufe, why the judg. a jodgmcnt
ment in an information in the nature figned pend«
of a quo warranto fhould not be fet afide with »ng a judge's
cofts, for irregularity, it appeared ; that a ^^^°°'* ^
copy of the replication was delivered, during
the laft vacation after nine of' the clock in an
evening ; that no rule to rejoin was given ;
that a fummons, for the profecutor's clerk in
court to fhew caufe, why tjic defendant
ihoiild not have further time to rejoin, Mras
iifued by Denifon J. that the clerks in court of
both parties did attend upon this fummons ;
that fome doubt arifing, as to the giving of
further time to rejoin, Denifon J. who was
going out of town,^ recommended it to both
the clerks in court to attend the chief juftice,
which both, as he apprehended, did confent
to do ; and that before any thing further vra3
done, the profecutor's clerk in court figned
judgment.
The rule was made abfolute.
And by the court— rit has been faid ; that
the delivery of the copy of the replication
after nine of the clock in an evening was irre-
gular ; and that a rule to rejoin ought to have
been given : But, as it appears from the mat
ter's report, that, by the praftice of the crown
office, a copy of a replication may be deliver-
ed after nine of the clock in an evening ; and
that when a copy of a replication is delivered
in the time of vacation, it is not neceffary to
give a rule to rejoin, there is no reafon to fet
jUide the judgment on either of thefe accounts.
It
1 66
Michaelmas Term 28 Geo. 2. f
It has been faid ; that it is not irregular to
iign judgment, pending the fummons of a
judge ; and it is in the general true, that the
fummons of a judge does not ftay any pro-
ceeding: Yet the judgment ought, in the
prefent cafe, to be fet afide, and with cofts ;
becaufe, upon confidering all the circumftan-
ces of the cafe, we are of opinion, that the
figning of it was exceedingly improper.
Exeeation
cannot be ta-
ken out, after
Ac allowance
0f a writ of
$TTOT corafn
«e^, without
leave of the
coart.
Ribout vcff. Wheelen
T TPON a rule to fliew caufe, why a writ df
vJ Fieri Facias fliould not be fet afide, and
why the money levied thereupon fhould not
be reftored, it appeared ; that a writ of error
coram vobis had been brought upon a judgment
and allowed ; that the plaintiff's attorney had
been ferved with the notice of the allowance,
before the writ of Fieri Facias was fued out ;
that the writ of error was not determined ;
and that the writ of Fieri Facias was fued out
wthout leave of the court.
The rule was made abfolute.
And by Denifon J. (Ryder Ch. J. and Wright
J. being abfent) Before a writ of error
coram vobis, it not being a writ of rights is al-
lowed ; there muft be an affidavit of fome er-
ror in fact, by which, in cafe the facl to be
affigned for error is true, the plaintiff's right
of aftion will be deftroyed. A writ of error
coram vobis is not zfuperfedeas in in itfelf : But
although it be not, execution cannot be taken
out upon the judgment whilft it is depending
without leave of the court. It would be very
unreafonable, that it fhould be in the power
of
■s-'-fJ.'
Michaelmsis Term a8 Geo. a. 1754. 167
of the plaintiff, to take out execution upon
the judgment without leave of the court,
whilll z queftion is depending concerning a
fiift, by which, if it be true, the plaintiff's
right of a&ion will be defiroyed.
Rex vetf. Brookes.
T TPON a rule to fhew caufe, why judgment Tt Is not al-
LJ Ihould not be arretted in an indidment, ways neceffarjr
the charge in the indiftment appeared to be ; !° ^^V^^r t?^
that the defendant dug two gripps or ditches „Xc^ Jj^
in a certain paffage or common footway ; one indiamentfor
of which was in depth fix feet, and in width anufance.
twelve feet ; the other in depth fix feet, and
in tvidth thirteen feet ; to the nufancc of all
the king's fubjefts.
The rule was difchargcd.
And by Denifon J. (Ryder Ch. J. and
Wright J. being abfent)— It has been faid ;
that the paffage or footway is not alledged to
have been a paffage or footway, from time
whereof the memory of man is not to the
contrary : But we are of opinion, that it was
not neceffary to alledge this ; for a highway
may have become fo, by a dedication of a
right of paffage therein to theufe of the pub-
lick, within time of memory ; and it is cer-
tain, that many ftreets in the city of Weji-
winjler have become highways, within time
gf memory.
It has been faid ; that the footway or paffage
is not alledged to be a common way for all
the king's fubjefts ; and that an indictment
will not lie for a nufance in a way, unlefs the
way be common for all the king's fubjeds :
But the gripps or ditches in the footway or
paffage
' -«. A'f ■»*iM?jit'-^?*«"4!^<!^«^W?' ^-i-'W^ »■!«»?
168 Michaelmas Term 28 Geo. 2. 1754*
paifage are alledged, to be to the nufance of
all the king's fubjeds ; which in Tbrower^s
cafe, I Ventn 208. was holden to be a fuffi-
dent allegation, that the way, wherein the
nufance was alledged to be, was a common,
way for all the king's fubjefts.
It was likewife faid ; that the length of the
nufance is not fet out ; and it was added ;
that this ought always to be fet out in an in-
dictment for a nufance in a way, for that
otherwife the court, in cafe there be a con*
vidion, cannot judge what fine ought to be
fet.
Denifon J. inclined to be of opinion, that
the length of the nufance ought always to be
fet out in an indi6lment for a nufance in a way;
not for the fake of enabling the court to fet a
proper fine ; but that the defendant may the
better know how to prepare for his defence.
Fojier]. inclined to be of opinion; that it
is not always neceflary to fet out the length
of the nufance in an indiftment for a nufance
in a way.
After taking time to confider, the two
juftices concurred in opinion ; that it was not
in the prefent cafe neceflary to fet out the
length of the nufance.
And by Denifon J. — ^The gripps or ditches
might, in the prefent cafe, be dug quite acrois
the footway orpaflage; in which cafe the nu-
fance would entirely confift in the depth and
width of the gripps or ditches ; and the court
oi^ht, after a verdid of guilty, to intend that
this was the cafe.
Rex
Michaelmas Term 23 Geo. ^. i754*
169
Rex verf. Burgefs.
rr an indidment, for obftrucling a certain
highway through Richmond Park, there
ivas only one count, in- which it was alledged,
.that all the king's fubjeflshave a right of paff-
iBg on foot, on horfeback, and in carriages,
in jand through the faid highway.
Upon the trial at bar of an iffue joined upon
the plea of not guilty, a right of paffing on
.foot in .and through the feid highway was
proved : !&ut as there was not a count in the
mdidment for a footway only, the direftion
£)f the court to the jury was, that they ought
to- find the defendant not guilty, and a ver-
^Qi of not, guilty was found.
A defendant
cannot be
found guilty
of obflruding
a footway 9 un«
lefs the ob-
ftrudHon of a
footway only
be charged ia
the indid-
meot.
iRex ^)€rf. Beimet.
TT TPON .a rule-to (hew caufewhy thcdcfen-
Aj/ d^nt, who rWas an ;iittorney, fhouldnot
jpay his client thefum of nineteen pounds, to-
other with the cofts of this application, it
-appeared; that y. S. was. arretted at the fuit
jof his client for thefum of nineteen pounds,
and was in cuftody; that the defendant had
taken a fecurity from y. S. to his client for
that fum, and difcharged him out of cuftody ;
and that the defendant, at the time of taking
the fecurity, knew it to be worth nothing.
The rule was made abfolute.
And by Ryder Ch. J. — It is highly reafona-
ble, that an attorney who has mifbehaved in
-fogrofs a manner, fhould make a fatisfaftion
to bis client,
Z . Rex
An attorney
compelled to
pay the money
due upon a
bad fecurity
taken by him
for his client.
I70
Michaelmas Term 28 Geo. 2. 1754.
Rex verf. The Inhabitants of Yarmouth,
It is not ne-
cefTary that
an indenture,
if the money
given with an
apprentice was
only fixpence,
fhould DC
ftamped.
IN an order of feflions it was ftated j that
the Pauper ferved an apprcnticefliip in the
parifli of Tarmouth^ under an indenture in
>vhich the confideration mo^ey pientioned
was fixpence ; and that the indenture was not
ftamped as is direfted by the 8 Ann. c. 9,
The queftion was, Whether the Pauper
gained a fettlement in the pariflh of jT^r-
mouth ?
It was bolden that he did.
And by Ryder Ch. J. ^As the duty due
upon the confideration money mentioned in
this indenture, was only three-fifths of a far-
thing there is no coin fmall enough to pay it
in ; and confequently the indenture could not
be ftamped as is direftedby the 8 Ann. c. 9. In
the cafe, of Baxter y. Fairlam^ Eajl. 1 9 G. 2.
in this court, it was holden, than an inden^
ture of apprenticcflxip, in which the money
jgiven with \i\t apprentice appeared to be fix-
pence, was not void for want of being ftamp-
(cd as is directed by the 8 Ann. c. 9. for that
pvery fuch cafe fiUls under the maxim, de mi^
jiimis non curat Le^i.
Rex
Michaelmas Term a8 Geo. 2. 1754. 171
Rex verf. The Inhabitants of Lechlade.
IN an order of feffions it was ftated ; that a fon, been
the Pauper was the fon of a man, who to- in a parifh
gether with his wife came to refide under a ^^er his fa-
certificate in the parifli of Lechlade ; that he ^Jg^fJ^j'"*
was born in that parifh after his father came ^certificate^
to refide under the certificate ; and that he cannot gain a
was hired as a fervant for a year in that pa- fettlement by
rifli ; and that he ferved the year. Ji ^^"''g ^^^
The queftion was. Whether the Pauper gain- ^^""^^^^
cd a fettlement in the parifh of Lechlade ? ^^"
It was holden that he did not.
And by Ryder Ch. J. — It has been faid ;
that the 9 and 10 W. 3. r. 11. by which it is
enafted, " that no perfon whatfoever, who
" fhall come into any parifh by a certificate,
*' fhall be adjudged by any a6l whatfoever to
^* have procured a legal fettlement, unlefs he
*' fhall, bona Jide^ tak ea tenement of the va-
" lue of ten pounds, or fhall execute fome
*' annual office in fuch parifh, being legally
" placed in fuch office,'^ does not extend to
the prefent cafe ; becaufe the Pauper did not
come into the parifh of Lechlade by a certifi-
cate. If the prefent were a new cafe, we
fhould be of opinion ; that as the Pauper was
born whilfl his father refided in the parifh of
Lechlade under a certificate, he is within the
meaning of tlvat flatute, although he be not
within the letter : But it is not a new cafe.
In the cafe of Rex v. T^he Inhabitants of Sher-
borne^ Eaji. 15 G. 2. it wasvholden; that the
fon of a certificate man, born in a parifii
whilfl his father, refided therein under a certi-
ficate, did not gain a fettlement by a hiring
for a year, and ferving the year in that parifh.
Z 2 Tourville
172
i -t T^racM
Michaelmas Term 28 Geo. 2^ 1754*
Tourville veff. Pony.
after
tttms,
two
A iic\r rtfpli- T TPON a rule tofliew caufe, why the plain-
caciion may be U tifF fliould not withdraw his replication
and reply again, it appeared ; that the repli*
cation intended to be withdrawn was of Eaf-
ter term laft ; and that iffue was joined in the
caufe.
The rule was made abfolute.
And by the court— It has beenfaid ; that a
new count cannot be added after two terms ;
and it is inferred, that therefore a new repli-
cation ought not to be allowed after two
tefrms i But there is a wide difference betwixt
the two things ; adding a new count is for a
new caufe of a£lion ; whereas a new replica-
tion is in the nature of an amendment, for
the making of which ito time is limited.
Mordecai verjl Solomon^
Coft» ordered
to be paid by
the attoraey
in a caufe.
UPON a rule to fliew caufe, why the plain-
tijBPs attorney Ihould not pay the cofts
of a judgment g£ Nonprofs^ and the cofts of
the prefent application, it appeared ; that the
pl^intiff*s brother had frequently employed
the attorney, and always paid him well ; that
the plaintiff^s brother had undertaken to pay
the attorney in this caufe, but that he did not
bring fome money applied for by the attor-
ney ; that judgment of Nonprofs was figned
for making up the iffue ; and that the plaintiff
was in prifon for not paying the cofts of the
judgment.
The
Michaelmas Term 28 Geo. 2. 1754. 173
The rule was made abfolute.
And by the court — ^When an attorney has
commenced a fuit upon the credit of a client, he
ought to proceed in it, although the client
do not bring him money every time he applies
for it.
Befides making the rule abfolute, it was
thrown out by the court, that it would be
proper for the attorney to take care, that the
plaintiff fliould be immediately difchargedout
of prifon.
Hilary
^74
Hilary Term,
28 Geo. 2. 1755-
Sir Dudley Ryder, Chief Jujiice.
Sir Martin Wright, 1
Sir Thomas Denifon, I
Sir Michael Fofter, 1 J^^^^-
SirJ. EardleyWilmot,j
MEMORANDUM. Towards the latter
end of this term. Sir JohnEardley fVil-
mot took his feat as one of the juftices of this
court, in the room of Sir Martin Wright, who
had furrendered his patent.
Rex verf. Stirling.
Th rn to THHE return to a mandamus direfted to
a mandamus -*- ^he defendant, for reftoring Jofeph Hall
holden to be to the office of parifti clerk, was ; that the
bad, by rea- office of parifti clerk being at a certain time
fon of Its be- vacant, and the defendant, to whom it be-
ing unceruin. j^j^g^ j ^ vicar to appoint thereto, not being
at that time able to find a perfon proper for
the
Hilary Term 28 Geo. 2. 1755. 175
the office, did appoint Jofeph Hall thereto,
until he fhould be able to find a proper per-
fon ; that Hall was no otherwife appointed j
that he was never admitted, or licenfed, as
parifli clerk by the ordinary ; that the defen-
dant having fince found a perfon proper for
the office, he had removed Hall^ and appoint-
ed that perfon thereto ; and that therefore he
could not reftore Hall to the office of parifli
clerk.
The return was holden to be bad ; and a
peremptory mandamus was awarded.
And by Ryder Ch. J. — ^As the office of parifli
clerk is prima facie an office of life. Hall did
by the appointment acquire a freehold in the
office, unlefs the defendant had a power of
. appointing thereto during pleafure ; and it
does not appear, that the defendant had fuch
a power. It is the duty of the perfon, to
whom a mandamus is direfted to obey the writ,
or to return a caiife for not obeying it in fuch
precife terms, that the truth thereof may be
tried in an aftion for a falfe return ; or that,
if the truth of the caufe returned be admitted,
the court may be able to judge of the good-
nefs thereof: Whereas the caufe returned in
the prefent cafe is fo uncertain, that the truth
thereof cannot be tried in an aftion for a falfe
return ; nor can the court, in cafe the caufe
returned be true, judge of its goodnefe.
Rex
176 Hilary Term 28 Geo. n. iJSS^
Rex veff. Hord.
UPON a rule to fliew caufe, why a con.
viftion for a forciUe entry ihould n^
A conviakm |^ quafhed, it appeared; that a fine was fct
entiyqiuScd! ^P^n the perfon convifted : But there was no
* adjudication, that he fhall be conunittedunUl
the fine is paid.
The rule was made abfolute.
And by the court — ^There ought to be an
adjudication, that the perfon, upon whom a
£ne is in fuch cafe fct, fliall be committed un-
!til the fine is paid.
Pawfoxx v^rf. Scott.
The ordinary I T^^N a rule to fhew caufe, why a writ
may grant a \J of prohibition fhould not be awarded to
faculty for an ^cdefiaftical court, it appeared; that un-
r^nVcS ^^^^^ ^ ^- ^- '' ^^- ^^^^ ^ declared to he
ry in a c a- ^^ p^yJ^ ftatute, a chapel had been built in the
town of Leeds ; that a power was given, by
that ftatute to the curate of the chapel, of fell-
ing the inheritance in the pews in the chapel;
that Paw/on had purchafed one of the pews
,of S^^// the curate ; thatSr^?//, uponafuggef-
tion that more pews were wanted in the cha-
pel, had inftituted a fuit in the ecdefiaftical
court for a faculty to erect a gallery ; that the
granting of the faculty was oppofed by Paw"
Jon, who fuggefted, that the eredion of the
gallery would be detrimental to his pew, by
{)reventing^ in fome degree, the accefs of
ight and air thereto ; and that there was a fen-
-tence for the faculty.
One
ttilary Term 28 Geo. 2. 1755* vj^
One queftion was. Whether it be not too
late to apply in any cafe, after the fentence of
an ecclefiaftical court, for a prohibition ?
It was holden that it is not.
And by Ryder Ch. J. — The fentence is, in
almoft all cafes, the grievance complained of;
and it is not in every cafe too late to apply for
a prohibition after a fentence. In the cafe of
Gardner v. Booth, Salk. 548. it is laid down 5
that a prohibition to an ecclefiaftical court may
be appliedfor after a fentence, inanycafe where*-
in the ecclefiaftical court had not jurifdiclion.
Another queftion was, Whether it be pro-
per to award a prohibition in the prefent
cafe ?
It was holden that it is not^
And by Ryder Ch. J. It has been faid ;
that a right to a freehold is in queftion, and
confequently that the ecclefiaftical court had
not jurifdiftion : But this is not the cafe ; for
the queftion is not as to the right of Paw/on
to a freehold in the pew, it being only as to
the extent of that right. The freehold of a
church is always in the parfon, and the free-
hold of a church-yard is always in the church-
wardens of the parifti ; and yet the ordinary
has a jurifdiclion as to all erections and orna-
ments in the church ; and in the cafe of ^/7-
ter V. Newton, Carth. 152. it is laid down,
that a nufance in the church-yard is of eccle-
fiaftical cognizance. The maxim, cujus e/i
folum ejus eji ufque ad Cesium, does not apply to
the cafe of a freehold in a pew ; in as much as,
the right of freehold in a pew docs only ex-
tend to fitting and hearing divine fervice
therein. The owner of a pew cannot either
dig a vault under it, or ereft any thing over
it, without a faculty from the ordinary.
A a The
178 Hilary Term 28 Geo. 2. 1755.
The prindpal queftion, namely, whether
it be neceffary to ereft a gallery in this chapel,
is proper for the determination of an ecciefi-
aftical court ; it being the province of the or-
dinary, to regulate every thing which relates
to the cxercife of divine fervice in a church
or chapel ; and there is no inftance of a pro-
hibition being awarded to an eccleiiaftical
court, in a cate Uke the prefent.
It is not a good objedion to the erefting of
a gallery in this chapel, that the pew of Paw-
fon will not be fo airy, or fo light as it was be-
fore ; for it is utterly impoilible to ereft a gal-
lery in any church or chapel, by which the
accefs of light and air to one or more pews
will not be in fome degree prevented : But an
inconveniency to one or more perfons muft,
in fuch cafe, be fubmitted to, that many per-
fons may have an opportunity of attending
divine fervice.
It has been faid ; that the right of Pawfm
to the pew in this chapel, it being a right of
inheritance purchafed under an act of parlia-
ment, is very diflFerent from the right which
perfons in the general have to pews in churches
and chapels : But all the rights of the ordi-
nary are exprcfely faved by the aft ; and the
right of granting a faculty for erecting a gal-
lery is one of thofe rights.
It has been faid ; tnat an aAion upon the
cafe will lie in a temporal court for the nu-
fance to Pawfm* s pew, by ereding the gaHe-
ry; and it is inferred, that a prohibition
ought to be awarded to the ecclefiafiical court,
left the judgments of the two courts fliould
be different : But there is no inftance of fuch
an aftion*s having been brought. It ought
likewife
HUary Term 28 Geo. 2. 1755. 179
likewife to be remembered, that there are di-
vers cafes, wherein temporal and eccleiiaftical
courts have a concurrent jurifdiftion ; and it
is probable, that the fentence of an eccleiiaf-
tical court may, in every cafe* wherein the
two courts have a concurrent jurifdidion, be
pleaded to an adion in a temporal court.
I
Portman verf. Okeden.
N a cafe referved, in an a£Hon qui tam^ it In an a^on
. was ftated ; that the aftion was for the ^^^ *o?"^^iJ
penalty of five pounds, given by one of the P^'J^enwthe
ftatutes made for the prefervation of the poor of a pa-
game; thatamoiety of the penalty was given ri(h, an inha-
to the poor of the parifli wherein the offence bitantofthe
was committed ; and that at the trial of the P^^ '^^^^^'^
caufe it was ruled ; that an inhabitant of the ^^^ acompc-
parifh whereia the offence was committed, tent witncfs.
who was affcffed to the poor's rate, was not a
competent witnefs for the plaintiff.
The q-ueftion was. Whether the inhabitant
was a competent witnefs for the plaintiff?
It was holden that he was not.
And by Den'ifon J. (the Ch. J. and Wright J,
being abfent) — It has been faid ; that the part
of the penalty given to the poor of the parifti
ought to be confidered as a bounty to the
poor : But there is no ground for fo confider-
ing it ; for that part of the penalty is to be
paid to, or to be diftrained for by the over-
feersofthe poor, and it is always brought to
the account of the parifh.
It has been faid; that in the cafe of Rex v,
Wyatt^ Pafch. 13 G. 2. it was holden ; that an
inhabitant of a parilh was a competent wit-
pel3 for the parilh : But it did not in that
Aaa cafe
i8o tl. ai/ Icriii -:S v;eo. i. 1755.
cafe appear, that the inhabitant was affeffed
to the poor's rate of the parilh ; and as that
did not appear, the court would not intend it.
No cafe has been cited, in which it was
holden ; that i perfon, who is affeffed to the
poor's rate of a parifh, is, in the general, a
competent witnefs for the parifh ; and it may
fairly be inferred from the 3 Esf 4 PT. Ssf A/.
r. II. whereby it is provided, that a perfon
who is affeffed to a poor's rate of a parifh may,
in a certain cafe, be a witnefs ; that fuch a per*
fon is not in the general a competent witnefs
for the parifii.
Norton verf. Vonles,
If an attorney T TPON a rule to fhew caufe, why a rule,
js plaintiff, the vJ which had been made for changing the
Ffftuemzyhe ^^„j^^ fj-Qm the county of Middle/ex to the
rhrcoun^of c^^"5y «^ Berk/hire, fhould not be difcharg.
jifiddlefex. ed, it appeared ; that the rule for changing
the venue had been made upon the common
Affidavit ; and that the plaintiff was an attor-
ney of this court.
The rule was made abfolute.
And by thccourt It is a part of the pri-
vilege of an attorney of this court, that he
may lay the venue in an a6:ion brought by
himfelf in the county of Ivliddlefex ; and the
court will qot deprive him of this part of the
privilege, unlefs there be fome very particular
and flrong reafon for io doing.
Arnold
Hilary Term 28 Geo. 2. 1755. 181
Arnold verf. Squire.
UPON a rule to fhew caufe,- why the in- In what man-
quifition upon a writ oi enquiry fhould "f^^utb^a
not be fet afide, it appeared ; that the fign. of \^^oi^^^
the houfe at which the writ was to be execut- muft be girco.
ed was not mentione(} in the notice of execut-
ing it ; and that it was not expreffed in the
notice, that the writ was to be executed be-
tween two certain hours.
The rule was made abfolute.
And by the court — It is neceffary that the
fign of the houfe, at which a writ of enquiry
is to be executed, fhould be mentioned in the
notice of executing it, and that it fhould be
expreffed in the notice, that the writ will be
executed between two certain hours.
Moir verf. Munday,
IN a cafe referved, in an aftion oitrefpafsj it ^ cuftom to
was flated; that by one cuftom of the city JlJJ'^j^Jg*""
oi Oxford^ if a perfon, who is not a freeman wWaTare'of
of the faidcity, expofe goods to fale in the a great value,
faid city, except in fairs or markets, he is lia- for a fmall
ble to the payment of fix fhillings and eight P^^^^^a"
pence to the two bailiffs of the faid city, by . ' r.^r
way of penalty ; that by another cuftom of lies for mak-
the faid city, in cafe the faid penalty be in- ing a diftrefs,
curred, and be not paid upon demand, all if there was no
the goods expofed to fale may be diftrained, "gjit ofdif-
and detained until it is paid ; that the plain. ''*'"'"^-
tiff, not being free of the faid city, did ex-
pofe goods to fale contrary to the faid cuftom ;
that a demand was made of the faid penalty ;
that
1 82 Hilary Term 28 Geo. 2. 1755.
that upon the refufal of the plaintiff to pay the
fame, all the goods expofcd to fale were dif-
trained by the. defendant, who was at that
time one of the bailiffs of the faidcity; and
that the value of the goods difiirained, which
were of various forts, was one hundred
pounds.
The qucflion was. Whether the plaintiff
be entitled to recover ?
It was holden, upon great confideration,
tliat he is.
And by Ryder Ch. J. — ^The general quefiion,
fubmittcd to the court by this cafe, namely,
whether the plaintiff be entitled to recover,
depends upon divers other queftions.
One of thefe is, whether a cuftom of a city,
by which every pcrfon, not being a freemaiv
of the city, who expofes goods to fale in the
city, except in fairs or markets, is liable to a *
penalty, be good?
We are of opinion, that fuch a cuflom is
good, provided the penalty be reafonable ;
and that the penalty in the prefent cafe is rea-
fonable. It is laid down in Waganor*^ cafe, ^
Rep. 126. that a cuflom to reflrain a man
from exercifing his trade in a particular placQ
is good.
Another of thefe queflions is, whether a
cuflom of a city to exclude a foreigner from
expofing goods to fale in the city, which does
not except victuals, be good ?
We are of opinion, that it is not neceffary
to the validity of fuch a cuftom, that viftuab
feould be excepted. In Waganor*^ cafe the
fele of victuals was not excepted, and yet fuch
i cuftom was holden to be good.
Anothcf
Hilary Term a 3 Geo. 2. 1755. 183
Another of thefe queftions is, whether a
cuftom to difirain for a penalty due by cuftom
be good ?
We are of opinion, that fuch a cuftom is
good. It is laid down in Waganor^s cafe, and
has been holden in divers cafes ; that a power
of diftraining for a penalty due by cuftom
may be given by a by-law ; and it feems to
be equally reafonable to hold, that a power
of diftraining for a penalty due by cuftom
maybe given by a cuftom, as it is to hold,
that a power diftraining for fuch a penalty
may be given by a by-law.
Anotlierof thefe queftions is, whether, as
the penalty is to be paid to the two bailiffs of
the city of Oxford^ one of them could diftrain
for it ? _
We are of opinion, that as it docs not ap.
pear, that the penalty is to be appropriated
to the ufc of the corporation, it muft be in-
tended, that it is to be paid to the bailiffs for
their own ufe ; and if this be fo, either of
them might diftrain for it.
Another of thefe queftions is, whether a
cuftom, to diftrain all the goods expofed to '
fale for the penalty of fix fluUings and eight
pence, be good?
We arc of opinion, that fuch a cuftom is
not good. If the cuftom had been, to dif-
train fuch of the goods expofed to fale as fliall
be fufficient to fatisfy the penalty, it would
have been good; and if only one thing. had
been expoled to fale, this, although it had
been a diamond worth a thoufand pounds,
might have been diftrained for the penalty :
But a cuftom to diftrain all the goods expofed
to fale, although they are of various forts
and of great value, for fo very fmall a penalty,
is quite unreafonable. In Godfref% cafe, 1 1
Hilary Term 28 Geo. 2. 1755.
Rep. 44. it is faid ; that excejfus in re qualibet
jure reprobatur communu In the cafe of Har-
grave v. Wood^ 2 Lutw. 1457. it is laid down ;
that it is unlawful to attach various goods,
which are of great value, for a fmall debt. It
has been faid ; that a carrier may detain all
tjie goods delivered to him, for a fmall fum
due ror the carriage of the goods : But there
is wide difference betwixt a power of detain-
ing the goods which are in a man's poiTeffion,
upon which he has a lien, and a power of
diftraining goods which are not in a man's
poffeffion. The power of diftraining, given
by the cuftom, has been compared to the
power of diftraining all the beafts which are
damage feaf ant ^ although very little damage
has been done : But the cafes are by no means
fimilar. It is always neceffary, that all the
beafts which are damage feafant fliould be dif-
trained, in order to prevent a continuance of
the injury : But, if a part of the goods ex-
pofed to fale are fufficient to fatisfy a penalty,
It never can be neceffary to diftrain all the
goods for the penalty.
The laft of thefe queftions is, whether, al-
though the plaintiff have a right of aftion, he
can recover in the prefent aftion ?
We are of opinion that he is entitled to re-
cover. It has been faid ; that in the cafe of
Lynne v. Moody ^ Mich. 3 G. 2. in this court,
which was a writ of error brought upon a
judgment of the court of common pleas, it
was holden ; that an aflion of trefpafs does
not lie for an exceffive diftrefe, the remedy
being by an aftion upon the ftatute oi Marl-
bridge : But that cafe was by no means like
the prefent. In that cafe, which was a dif-
trefs for rent in arrear, there was a right
to diftrain } and as nothing was done
after
Hilary Term 28 Geo. 2. 1755. 185
after the diftrefs, to make the diftraining a
trefpafs ab Initio^ there was in faft no tref-
pals : But if our opinion be well founded,
that the cuftom to diftrain all the goods ex-
pofed to fale, although they arc of various
forts and of great vSue, upon which alone
the right to diftrain in the prefent cafe could
be grounded, is not good; the defendant had
not any right to diftrain ; and there is not
the leaft room for doubt, that, if a diftrefe be
made by a perfon not having a right to dif*
train, an at^on of trefpafs will lie*
Helketh vtrf. Gray,
AN aftion of debt being brought upon a If an obligor
bond in the penalty of five thoufind undertake for
pounds, and Oyer being prayed of the bond, ^^ *^ °^ *
It appeared from a recital therein ; that Robert muftprocurc
Hejketh^ the plaintiflF, had prefented JohnGraVj the ad to be
the defendant, to the vicarage of Steyning m done,
the county of Suffex ; and that it w^s agreed
betwixt them, that the faid John fliould,
within three months after the expiration of
fix years, to commence from the day of the
date of the bond, at the requeft of the faid
Robert^ his heirs, executors, adminiftrators
or afligns, refign and deliver up the faid vi-
carage into the hands of the proper ordinary,
fo that it may become vacant, and the faid
Robert^ his heirs, executors, adminiftrators
or affigns, may prefent anew. It like wife ap*
peared ; that the condition of the bond was ;
that if the faid John fliall, within three months
after the expiration of fix years, to commence
from the day of the date of the bond, at the
requeft of tne faid Robert^ his heirs, executors,
adminiftrators or afligns, refign and deliver
up the faid vicarage mto the hands of the
B b proip^t
i8$ " "^ Hilary Terfli 28 Geo. 2. iy$j.
propej: ordinary, svl^jcljy it nj^y becpqie ya-
cajitj ^pd the faid Robert, y? heirs, e^ecutors^
adqi^ruilratQr^ or aHjigBS, may prelibpt znpWf
th^ the obligation to be void.
T^e flefendant pleaded ; th^t he did, i^^itl^-
iji \^rec nipnth$ afjter theexpir^^ipn of the fif
ye^$ mentioned in thie cpQdition pf tlpi^ iK>nd,
J^t thp rej^ueft of the fajud ^obert^ offer ftp re-
}gjf^ ^D.d deliver up into the h^nds qf M/a/-
t^ias^ Lord Bjfliop of Cbicbejier^ w^p |i^a$ the
proper ordinary^ i]it f^4 yic^r^gp, fpr tj|if5
laid ordinary f q ^pept the f?xpe, whefeby fh^s
faid vicarage might become vacant, and the
faid Robert might prpjipt anew ; ^nd that the
faid- ordinary did then refufe, and from
thpncpforth hitherto hath refufcd to acgept
. fijch refign^tion.
Uppi) a demurrer to t|iis plea^ it was bpldea
to te bad ; becaufe it is ppt therein ^yerred,
th^ the biihop accepted the refignajtipn-
^Vid by Ryder ph- J.— The defei^daij.t, hy
ijinderiaVipg Xo refign, fo that the vicarage
may become vacant, and the plaintiff may
prefect anew, has undertaken for thebifhop'^
acceptance of a reiSgnation ; ^hich, accord-
ing to what is laid down in Panel's c^fe, Oa.
Jq. 1.98. is nece^y to the coijapletion of ^
refigpation.
Several cafes have been cited, in ijsrhich it
|]as been holden ; that if a third perfon, vf\^Q(
is a truftee for the obligee, refufe to do an
aft, for the doing of which the obligor ha^
under tal^en, the penalty of the bond is faved :
i^nd in order to bring the prefent cafe \vithin
the reafon of thofe cafes^ it has been faid }
that the bilhop is to beconfidered as a truftee
for the obligee. If the biihop were a truftee
for the obligee, it w^wld be in the obligee'*,
power to coiflpel hipi to accept s^ refign^tio^i \
HUary Terfn 28 G6or. 2. 1755. _ iSy
it being always* in the ptWfr'er of a ce/lui (juS
if-ujt to compel Jris trnftee to'6ifcctrte the fruft:
Brf< it is not, in tl!re prefeiit cafe, m tTie piiwtr
6f th4 obfigee io dd thk ; ^ttd confeqirentfy;
the fciffcoip is ttdt to be conAdcrcd as a truftec
for the' 6tiHgte.
We af e OT opinion, that the brfhop is', Jit
fht* prtfeYrt cafe, a flrangef to the obligee;-
aiWf il^ thK- be fo, it was' itfcutnbeAt lipon^ the
obligor to pTocntc his accccptaiice of a refigna-
tioir. In I Roll. Abr. 452. 5 Rep. 2%. ancf i
Saiirid. 216. It is Jaid do\^rr ; that if the obH-*
gof tffld^ttakt for the aft of a tfhird perfaAy
wfi^r is i ffi^ariger to <he obKg'ee, it is ificufA'-
httii iipotf the bbligor to procure the a6l to*
be doWi J rmlefsr there we^e at the time of erf-
terhxg hrto' thd botid an irtipoffibiKty of dofrigf
tlrfr aft, of unfefs* the doing thereof ha^e h6€tt
&ttt rendered impcrffibte by the aft of God,-
OT by the act of law.
Maiwell verf. Shairp.
Ul^ON a writ of error ^ brought upoii a A verdi<a, for
judgment of the CoUrt of King's BeiicK *^« finding of
ih Ireland; by whicli a judgment of the coiir^ ^Ji^^^f^J^^^^^^
oi tomin6fx pleas iti Ireland was affirmed, it ^dence/ i^
appeared ; that Sharp the plaintiff in tRe orK good, altho'
gTnaTacliony which was an aSion of v^/w^/, improper evi-
h^dalledgred in his d^ciaratiOn ; that by atf ^^nce was ad-
a^fe^ment jn writing, ^ntfefed into betwixt ""'"
him and^ it/^^vW// the doftBdant.m that ac-
titon, it Wa's agreed J that 5&^(kjci ffioulid trans- \-i..
Hi to Maxwell two thoutaod ppuiids, London
afluVarice ftock, at the day of the Joexf open-
ing of t'fid transfer hoe^ 6i the ^d ftock;
aiia that MdxwU fliould pay tlie fum of two
^ b 2 thbu&ilid
i88 Hilary Term 28 Geo. 2- 1755.
thoufand four hundred and fixty pounds to
Sharp for the faid ftock : that at the day oi
the next opening of the laid books Sharp was
ready, and continued to be ready utitil the
Shutting of the faid books that day, to transfer
the faid ftock to Maxwell ; that neither Max^
welly nor any perfon on his behalf, catne to
accept the faia ftock ; and that Maxwell has
Hot fince paid the fum of two thoufttnd four
hundred and fixty pounds to Sharp.
It appeared from a bill of exception; that
tielbut, a broker, gave evidence, that upon
the 19th day of Auguft 1720, he bought on
the account of^Sharp znd Abbot two thoufand
pounds London aflurance ftock, which was
transferred to Sharp only ; that the fame day
a parol agreement was made, betwixt Sharp
and Abboty and Maxwell^ for the fale of the
ftock to Maxwell ; that a note in writing was
given by Sharp to Maxwell^ by which he
agreed to transfer the ftock to Maxwell^ at
the day of the next opening of the transfer
book's of the ftock ; that another note in wri-
ting was given by Maxwell to Sharps whereby
he agreed to accept the ftock at the day of the
next opening of the books, and to pay the fum
of two thoufaiid four hundred and fixty
pounds to Sharp for the fame ; and that Sharp
and Abbot fuftained a confiderable lofs, by be-
ing obliged to borrow money at high intereft
to pay for the ftock. It did likewife appear
from the bill of exceptions ; that in the regif-
ter of the contrad for the fale of the ftock,
the contraft was mentioned to be betwixt
Sharp 2U[id Abbot y znd Maxwell ; that there-
gifter was not figned by any of the parties to
thecontraft; and that the note from Sharp
to Maxivelly and the note from Maxwell to
Sharpy were fet forth at large in the rcgifter.
The
Hilary Term a8 Geo. 2. 1755. 189
The judgment was upon great confideration
affirmed.
And by Ryder Ch. J.— 'It has been faid ;
that the declaration in the original action is
bad } becaufe it is not therein alledged, that
there was an aftual transfer of the flock. This
objeftion to the declaration is founded upon
a iuppofition, that the transfer of the (lock
was a condition precedent : But we are of
opinion; that there were, in the prefent cafe,
two mutual and independent contracts, for
the breach of either of which an adlion would
lie. If the transfer of the ftock were, in the
prefent cafe, a condition precedent, the dc-
claration would neverthelcfs be good ; for
as Sharp was ready to transfer the ftock, be
is, agreeably to what is laid down in the cafe
of Lancafhirev* Killingworth^ Lord Raym. 686.
as well entitled to the money agreed for, as if
it had been aflually transferred.
It has been faid ; that the evidence, it being
of an agreement betwixt Sharpy and Abbot^
and Maxwelly did not maintain the declara-
tion in the original action, in which an agree-
ment betwixt Sharp and Maxwell is aUedged.
If the parol agreement, of which evidence
was given, were inconfiftent with the written
agreement contained in the note from Max*
well to Sharp, that evidence ought not to have
been admitted ; it being a fettled point, that
evidence of a parol agreement, which is in-
confiftent with a written agreement, ought
not to be admitted : But we are of opinion,
that the parol agreement, of which evidence
was given, is by no means inconfiftent with
the written agreement. Inftead of being in-
confiftent therewith, the parol agreement is
an agreement between Sharp and Maxwell :
For as the legal intereft in the ftock was in
S6ar^
i^o Hifary T6rm iS 6eo. 2. ijsi-
Sharp alone, he only coilfcJ, v^itfr propriety,
a^ee for the fale thereof ; and confeqtiCfAt^,
tne participatfbn' of Abbdt in an agreement be-
*^xt Sharp ancf Maxwell^ nct\frJtnftanding ti€
Bad an eqtiitable interefl: in a m'otety o^ Ae
ftotk, cotild oftly atnoutlt to a ctttonrdiatioii
6f the agreeincnt.
It has feefen faid -, that tie reglfl^r (X th<?
doritraft for the fale of the ffoCk \fraS riot fignecf
by the parties thereto, as fe by tlie 7 G. u
flat. I. r. r. requited: But wnei'e th<e '^frote
eontraft for the fale offtock is regil^cred, ai
ieas done ill the preferit calfe, it is not ifequW-
cd by fliat ftatute, that the regfft^l' Aotild bef
figncdby the parties thteretb ; t!he fignhsg^ 6i
<he reeifter being orily reqttiTerf, wkertf att
abftraftor amemt>rial of the dontra^ ii re-
giftei-ed. In the cafe of Ajhtes V. ttindfioH^
Mkh. 1 1 G. I. it! was rufed ; that where thef
whole contraft for the fale oi flock ilJ fe'-
giftei^ed, it is not rieceffaVy that the regiffer
mbuld be figned by the parties thereto.
K has been faid; that tlite vei'di^l: in f Ae ort
ginal aiflibn is bad' ; becaufe cvidiefnce Was arf-
mitted of a lofe fuftained hyAdbd/ as V^etf iS
Shaypj by the bori'owirig of money at high
intereft" to pay for the ftock. Btit^ as' thei^c
was fufficient evidcilce to warrant the findii^'
of the verdlft as it is found, attd it doeS riot
appear, that any regard V;ras paiid* b^ the jUi'ofs;
to this evidence, the corirt vrtll not intetirf
that any regard wa^ paid. The court will
ratlier intend, in fripport of the vetdifl:,. that
the jurors rejecSfed this evidence as^ fu'pifi'-
fluous.
A writ of error wz% brought upori the judg-
ment of this court in the Houfe of Lords ; m
Which there was judgment of noHpfo/s.
Hilary Tierm aS Geo. 2. 1755. 19^
Kearle qui tarn ver/^ Boulter.
11^ aQ9i^0D, i^roughtfor the penalty given Apovltererit
by tfee 5 jinn, c 14. it was found by a not liable to
fpecialyerdia; that the defendant carried on \^^^y^
y^e tj^de of a poulterer ; that for the carry- iihUcuftodJ.
ing on of this trade he kept an open &op,
wh^Xi^ln he bonght and fold geefe, chickens,
p,nd Qther poultry; that he had a hare in his
cx^odYj and did felj the hare to J. S. for
fpyr fliilUng^ ; and that at the time of having
Ap hare in hh cuftody, and of felling it, he
yf^s iei&d in fee of an eftate of one luind|:ed
pounds a yie^ir.
Thip qyefiip.n was, Whether the plaintiff
ought to recover ?
It >!irasfaol4ejEi upon great confijderation that
Jieought not^
And by Ry^der Ch. J.— By that claufc of the
$Ann.c. 14. ypon which the prefent adion
}s founded, itisejiaacd, " thatif any higler,
*^ chapman, carrier, inn-keeper, vi^aller
♦' or alehoufe-keeper, flxall have in his cuftody
^* or poffeflion any hare, pheafant, partridge,
^* moor, heath game or gronfe, or fliall buy,
^^ fell, or ofier to fale any hare, pheafant, par-
^* tridge, moor, heath game or groufe, eve-
** ry fuch higler, chapman, inn-keeper, vic-
*' tualler, alehoufe-keeper, or carrier, unleft
** fuch ganie in the hands of fuch carrier be
•* fent him by a peribn qualified to kill the
" game^ (hall forfeit for every hare, pheafant,
" partridge.
192 Hilary Term 28 Geo. 2. 1755.
" partridge, moor, heath game or groufe, the
" fum of five pounds/*
It has been faid ; that every perfon, who
buys and fells goods ip an open ihop, is a
trader ; and that every trader is a chapman ;
for that the German word copeman^ from which
the EngUjh word chapman is derived, does fig-
nify a trader : But we are of opinion ; that
although the defendant be a chapman in the
hrge fenfe of the word, he is not a chapman
within the meaning of the 5 Ann. c. 14. In
order to come at the meaning of a word con^.
tained in a ftatute, the mifcnief intended to
be remedied by the ftatute ought to be taken
in confideration. It appears froln the pream-
ble of the 5 Ann. c. 14, that the mifchief, in-
tended to be thereby remedied, was the buy-
ing or receiving of game from loofe idle per-
fons. In order to remedy this piifchief, inn-r
keepers, viftuallers and alehoufe-keepers are
/ prohibited from having game in their cuftody
or poffeifion ; becaufe it is probable, that thefe
perfons will frequently buy or receive game
from loofe idle perfons, in order to have mo-
ney fpcnt at the eating thereof in their houfes,
Higlers and carriers are likewife prohibited
from having game in their cuftody or poffeffi-
on ; becaufe it is probable, that thefe perfons
will frequently buy or receive game from
loofe idle perfons in one place, in order to fell
it at another. Chapmen are likewife prohi-
bited from having game in their cuftody or
poffeffion : But the found conftruftion feems
to be, that the word chapman in this ftatute,
and the rather, becaufe it is inferted betwixt
the words higler and carrier^ does only mean a
trader who trades from place to place. It be-
ing as probable, that fuch tr&ders will fre-
quently buy or receive game from loofe idle
perfons
Ijilai^y Term, 28 Geo. 2. 1755. 193
perfons in pnc place, in order to fell it at
another,, as that higlers and carriers will. I(
was reafonablc to prohibit fuch traders from
having game in their poileilion : But it neyeir
could be the intention of the legiflature, to
prohibit every trader from having game in
his cuftody or poffeffion.
It has been faid; that, although tfie opinion
of the court fliall be, that the defendant is a
chapman within the meaning of the 5 ^nn. c.
14. yet the plaintiff ought not to have judg-
ment ; becaufe the jurors, whofe province it
was to determine, whether the defendant be
fuch a chapman, have only found fads, and
have not found exprefely that he is. But as
the queftion, whether the defendant be a
chapman. within jiie meaning of that ftatute,
does in a great meafure depend upon the con-
firu^ion of the ftatute, we are .of opinion ;
that it is a queftion proper for the determina-
tion of the court ; and that the fafts found by
tJke verdidl, sg-e fufficient to enable the court
to determine the queftion. In the cafe of
Dad/worth ,v^ Anderfon, 2 Jo. 142. it was
holden ; that if the proper facts are found by
a verdid, it is the province of the court to
determine, whether a perfon be a bankrupt
within the meaning of any ftatute.
It was faid ; that although the opinion of
the cdurt flh^all be, that the defendant is a
chaprtian within the meaning of the 5 Ann. c.
14. andlikewife, that the queftion, whether
the defendant be fuch a chapman, is proper
for the determination of the. court, yet the
plaintiff ought not to have judgment : Be-
caufe it is found by the verdict, that the de-
fendant, at the time of having a hare in his
cuftody, and of felline the hare, was feifed in
fee of an eflate of one hund^(^ pouads a year ;
C c and
194
Hilary Term 28 Geo. 2. 1755*
and it was inferred j that it would be ftrange
to hold, that a perfon, who is by law qualifi-
ed to kill all kinds of game, is liable to a pe-
nalty for having a hare in his cuftody, or for
felling a hare.
No opinion was given by the court upon
this point.
If there be
manifcft id-
tention t(» de-
vife an eflate
ID fee, the
conftni<5tion
ought to be,
that fuch an
eflate is de-
Tifed.
Kennon ver/l Owen.
IK a cafe referred, in an ac^on of ^c6t*
itient, it was ftated; that Tbomas Fijher
being feifed in fee of an eftate, part of which
was copyhdd, in the parilh of Barfton^ he
furrcndered the copyhold part to the ufe of
his will ; thit by a will made afterwards, he
devifed all his freehold and copyhold lands in
the pariih of Barfion to WiUiam Ftfherj his
brother, for and during the term of his Ufe;
that after this devife, he by the fame will be-
queathed divers legacies, to the amount of one
hundred and fifty pounds, and then added
thefe words, '• atfter the deceafe of myfelf
^< and brother, and all my legacies are paid,
" I do appoint my nephew Abraham Fijher^
" to be the executor of all mv real and per-
*^ fonal eftate whatfoever ;** that the teftator
and William the brother are both dead ; and
that the teftator^s perfonal eftate did not
amount to more than eight pounds.
1 he queftion was. Whether William the exe-
cutor, d<i?s take an eftate in fee in the tefta-
-tor*s r^:li tVtatc under this will ?
• It V ;is holde? U.iit he ck>e8.
And v<y R,\'e* Ch, ]. — iJuch a conftruAion
ought, if pvifilbie, to be put upon the words
Ota will, that the intention of the teft:ator,
- ^nanifcftly
Hilary Term a 8 Geo. 2. tjs$, 195
manifefily appearing therein, may be anfwer-
ed. It does appear manifeftly in this will to
have, been the tefiator's intention, that the
legacies bequeathed by him ihould be paid by
Abraham the executor. This intention, as
the legacies amounted to one hundred and
fifty pounds, and his perfonal efiate to only
eignt pounds, cannot be anfwered; unleft
the conflru&ion of the will be, that Abraham
the executor takes an efiate in fee in the tefta^*
tor's realeftate.
It has been faid ; that the copyhold part of
the teftator's eftate cannot pais under this
will ; becaufe it is not exprefely mentioned
therein : But if there have been a furrend^r
of a copyhold eftate, to the ufe of the furren-
deror's will, the eftate will pafe by any words
inthewillofthe furrenderor, which amount
to an appointment under the furrender ; and.
we are of opinion, that the following words
in this will, " I do appoint my nephew
^^ Abraham Fijher^ to be the executor of all
*^ my real eftate whatfoever," do amount to
an appointment under the furrender of the
copyhold part pf tljc teftatojr's eftate to the uf?
of his wilL
Rex verf. Tew and Soame,
THE defendants, who had been found The court rci>
guilty . upon an indidiment, being fufed to fct a
brought up for judgment, it appeared ; that ^"^^ ^X^v
the indidment was for an affault and battery ; ^JfendantV
and that the expence of the profecution who had been
anipunted tq near two hundred pounds. found guilty
As the defendants would not confent to go on *° ""^*^j
before the matter^ the court was moved to "^^"confcnt to
fet fuch a fine, that a third part thereof may be "^ tJefo^c the
fufficient to reimburfe the profecutor a confi- maftcr.
^erable part of hi^ expence.
C c 2 iL&^e
196
Hilary Term 28 Geo. 2. 1755.
A fine of thirty pounds was fet upon each
of the defendants.
And by /{yrf^r Ch. J. — ^It has been faid, that
in the cafe of Rex v. Dyke and Three Others ^
Trin. 21 &f 22 G. 2. this court did fet a very
large fine upon the defendants, who were
found guilty upon an indidment, with a de-
clared intention, that the third part thereof
might be fufficient to reimburfe the profecutor
• a confiderablc part of his expence : But the
indiftment in that cafe was for a publick nu-
£ince, for which no action could be maintain-
ed ; whereas the indiftment, in the prefent
cafe, is for private injury, for which an adlion
might have been maintained.
Berwick veff. Symonds,
If the plain-
tiff proceed
after he has
taken money
out of court,
he is not en-
titled to cofts.
UPON a rule to fliew caufe, why cods
(hould not be paid to the plaintiff, it ap-
peared ; that four pounds had been brought
into court upon the common rule ; that after
the plaintifFhad taken the money out of court,
he proceeded in the aftion ; and that he has
now difcontinued the action.
The queftion was. Whether the plaintiff
ought to have cofts to the time of bringing
the money into court ?
It was holden that he ought not.
And by the court — By proceeding in the
action, after the money was brought into court
upon the common rule^ the plaintiff forfeited
his right to cofts ; it being a part of that rule,
that
Hilary Term 28 Geo. 2. 1755. 197
that if the plaintiflF will not accept of the money
brought into the court with cofts, to be tax-
ed by the mafter, in full difcharge of the fuit,
the faid money fliall be ftricken out of the de-
claration, and be paid out of court to the
plaintiff; and upon the trial of the iffue, the
plaintiff {hall not be permitted to give evidence
for the faid money.
Yates verf. Carlifle.
UPON a rule to fhew caufe, why the de- a rule «ade
fendant mould not have time to rejoin, abfolutc for.
it appeared ; that the acHon was an adion of time to rejoin
trefpafs ; that the declaration, which was for in ana^on.
breaking down a fence, was long; that tlie ^^^*I«^-
plea was neceffarily long ; that the replication
was very long ; that the rejoinder muft necef-
farily be very long ; and that many iffues muft
be joined.
It likewife appeared ; that the defendant
had brought an adlion upon the cafe for eredl-
ing the fence ; .and that the right of erefting
the fence, which is the only thing that is really
in queftion between the parties, may be as
. well tried in the latter adion, as in the adion
of trefpafs : And it was faid ; that it will be
hard upon the defendant, to be forced on to
trial in the adion of trefpafs, wherein there
muft be many ilTues ; and confequently, al-
though the juftice of the cafe is with the de-
fendant, he may be liable to cofts, by reafon
of fome one of the iffues, upon which the
merits do not in the leaft depend, being found
againft him.
The rule was made abfolute.
. And
198 Hilary Term 28 Geo. 2. 1755.
And by Hyder Ch. J. — ^It has been (aidj
that as the making of the prefent rule abfo-
lute will prevent the plaintiff from proceeding
in his adion, it vfill ftop the courfe of jufiice ;
and that there is no inuance of the court's in-
terpoilng in fuch cafe : But the vexatiou{he&
and oppreffiveneis of the plaintiff in the pre-
fent adion are fo very apparent ; that whe-
ther there be any inftance of the court's inter-
pofing in fuch cafe or not, it is proper to do
It in the prefent cafe.
Rex verf. The Inhabitants of St. Bo-
tolph, Bifliopfgate,
A ^wwnft't TN an order of feffions it was ftated ; that
iMi^nt 11 J^ Eleanor the pauper, whofe fettlement wa?
^J^Sz i« ^hc Pa"fl^ of St. Botolpb Bijhapfgate, married
nan who has Finley an Irifh failor ; that flie reiided fomc
no fettlement time with her hufband in the parish of St.
in England, j^hn Wappin^y and upon his going abroad,
was left by him there ; that her huD>and has
not to her knowledge any fettlement in Eng^
land ; that fhe believes her hufband to beftUl
living, having very lately received a letter
from him ; and that th6 pauper, together with
a child which fhe had by her hmband, had
been removed to the pariih of St. Botolpb.
One qucftion was. Whether the pauper
could be removed to the pariih of 5/. Bor
tolph?
it was holden that flie might.
And by Ryder Ch. J.— The fettlement of a
perfon in one pariih does always continue,
until a fettlement is gained in another pariih.
it is not in the power of a perfon to determine
his right to one fettlement, in any other way
than
Hilary Term 28 Geo. 2. 1755. 199
■^" ■ ■ — • * -
than by the gaining oiF another ; a fettle- "^
ment being a permanent thing, and the pnb»
Kck bdng interefted therein. As the fettle*
ment of the pauper before her marriage wai
in the parifh of St. Botclph^ and as flie did not
thereby acquire any other lettlement, her fet*
kkment continues to be in that parifli.
During the time that the hufband of the
pauper cohabited with her in the parifh of
St. ydhrty (he could not be removed from that
Eanfb to the parifh of St. Botolfb ; becat^fe
er hufband could not be removed thither ;
and a married woman cannot be removed
from her hufband : But as her hufband hH$
no^Ieft her, there does lidt appear to be any
reafon, why file fhould not be removed to her
iDwn fettlement.
It has hexftt £iid ; that the removal of the
pauper to the parifh of St. Botolph will, in ef-
feS, be ^ divorce of her from her hufband ^
for that in cafe he fhould return, it will not
be lawful for him to cohabit with her in that
parifh: But this objection is not well found-
ed; for as the hufband has no fettlement in
England^ It will, in cafe he fhould return, bp
as wwful for him to cohabit with his wife in
the parifh of St. Botolph^ as in any other-
parim. /
It has fecen faid ; that in the cafe of Rex v.
The Inhabitants of Nortotiy Mich. 23 G. 2. ,
which ^as i cafe like the prefent, it was hold-
en, that the fettlement of the wife was fuf-
{)ended during coverture; and it has been
aid i that the maxim Jiare decijls ought to be
adhered to : But four or five antecedent cafes
have been cited ; in which it was holdcn, that
the fettlements of the wives did, in cafes like
the prefent, continue. The maxim Jiare de-
cijis
aoo
Hilary Tprip 28 Geo. 2* 1755.
cifis is a good general maxim : But it is not
always to be adhered to; and it muft be al-
lowed J that the court is as well warranted in
the prefent cafe^ to depart from what was
holden in the cafe of Rex v. The Inhabitants of
Norton J as the court was in that cafe, to de-
part from what had been holden in .the four
or .five antececedent cafes.
. Another queftion was, Whether the child
could be removed to the parilh of St. Bo^
toljh?
It was holder that it might.
And by Ryder Ch. J.— If the father of a le-
gitimate child have a fetdement in England^
his fettlement is the fettlemeiit of the child :
But if the father, of fuch child have no fettle-
ment in England^ and the mother have, her
fettlement is the fettlement of the child.
Re:^ vcff. The Inhabitants of Sudbury.
If a certificat-
ed perfon be
removed to
the parifh by
which the cer-
tificate was
giveoy the
certificate is
fatisfied and
at an end.
IN an order of feflions it was ftated ; that
Thomas Bladen J together with his wife and
the Pauper and.his fon, went in the year 1728
to refide in the parilh of Utoxeier^ under a cer-
tificate from the plrifli of Sudbury, addreffed
to the parilh oiUtoxeter; that in the year 1 73 1 ,
Thomas Bladen being dead, and the wife be-
coming chargeable, flie, together with the
Pauper^ was removed to Sudburv hyzn order
of two juftices J that the certincate was not
. delivered up ; and that the Pauper afterwards
ferved an apprehticefhip in Utoxeter.
The queftion was. Whether the Pauper did
gain a fettlement in Utoxeter ?
It was holden that he did.
And
Hilary Term 28 GcQi' 2. 1755. 201
And by Ryder Ch. J. — ^Wc are of opinion ;
that the certificate was fatisfied and at an end,
by the removal of the wife and the pauper
under an order of two juftices; and confe-
quently, that the pauper was as capable of
gaining a fettlement in the parifh of Utoxeter
as in any other pariih. If it fhould be holden,
that a certificate is not fatisfied and at an end
by one removal, under an order of two juf-
tices, it would be difficult to fay when it is.
As the confequence of this uncertainty would
be, that pariihes would be averfe to the giv-
ing of certificates ; the defign of the certifi-
cate aft would, in a great meafure, be fruf-
trated. The cafe of Rex v. The Inhabitants of
Sowerby^ HiL 24 G. 2. has been cited, as an
authority for the pauper's gaining a fettle-
ment in the parifh of Utoxeter : But, there is
a material dmerence betwixt that and the
prefent cafe. In that cafe, the return of the
family, to the parifh which gave the certifi-
cate, was a voluntary aft ; whereas in the
prefent cafe, the family was removed, to the
parifh by which the certificate was given, un-
der an order of two jufUces.
Dd Eaftec
■•^•9.
M
Eafter Term,
a8 Geo. 2. 1755*
Sir Dudley Ryder, Chief Jujlice.
Sir Martin Wright,
Sir Thomas Denifon, t
Sir Michael Fofter, {JhA'
Sir J. Eardley Wilmot,^
tees.
Rex verf. Day-
A new trial
cannot be
granted by an
inferior court.
UPON a rule to fliew caufe, why an at-
tachment fliould not be awarded, it
appeared; that the defendant was under-
flieriff of the county of Cambridge ; and that
he had granted a new trial in a caufe in the
iherifPs court.
The rule was difcharged.
And by Ryder Ch. J.— In the cafe of Hall
V. Hilly Mich. 1 Ann. Farr. 85. it is faid by
Holt Ch. J. to be a rare thing for judges to
grant a new trial before themfelves. In an-
other report of the fame cafe, by the name of
the cafe of the Mayor and Aldermen of BriJioU
it
Eaiber Term 28 Geo. 2. 1755- 203
it is (aid to have been holden ; that an infe-
rior court cannot grant a new trial. In the
cafe of Page v. Rounds Pafch. jo 4ntu in thb
court, it was holden ; that an inferior court
cannot grant a new trial. The fame was
holden in the cafe of Brook v. Xwers arid Wifs^
Mich. 5 G. I. in this court ; and a mandamm
was awarded for proceeding to judgment up-
on the verdift. Upon the whole it feems to
be a fettled point, that a new trial cannot be
granted by an inferior court : But, as it doc$;
not appear, that (he defendant a^^d either
from a corrupt, or from a partial motive, the
prefent rule ought not to ho made abfolute^^
in as much as, a judicial officer is »otanfwejf-^\
able criminally for an error in judgment.
A rule was made to iheW cauTe, why a
mandamus fhould not be awarded for proceed--
ing to judgment upon the verdift; which^.'
no caufe being ihewn, was at another da)r
made abfblute.
And by Wilmot J.^-^t has of late years been ^
the praftice, to award a mandamm for pro-
ceeding to judgment j in the room of the writ
di procedendo m judicium^
Rex verf. Chapman.
UPON a rule to fhew caufe, why a con- A convi<aioD
viftion by ajuftice of the peace fhould quafhed; be-
not be quafhed, it appeared; that the con-^*"^®*^^®^"
viaion was upon the 43 Eli%. c. 7. whereby it thcreir'JIrt?
is enaded, *' that if any perfon fliall rob an cularly de-
*' orchard, not being felony by the laws of Scribed.
^* this realm, being thereof convicted by the
•' teftimony of one witnefe upon oath, before
^* one jufticc of the peace, fliall give the party
D d 2 " fuch
204 Eafter Term 28 Geo. 2. 1755.
^ fuch recompencc, as by the faid juftice
" fhall be ordered ;" that it was fiated in the
convidion, that J. S. made oath before the
juftice, that the defendant Martha Chapman
did rob the orchard of Thomas Whitby^ the
robbery not being felony by the laws of this
realm ; and that thereupon the juftice did ad-
judge the faid Martha Chapman to be guilty
of the faid robbery, and did order her to pay
ten fhiUings and fix-pence to the faid Thomas
Whitby^ by way of recompcnce.
The rule was made abiolute.
And by Ryder Ch. J.— It is laid down in 3
Jn/l. 41. that although the words of a ftatute,
by which an offence is defcribed, are general,
the defcription of the offence in an indidment
miift be particular; for that otherwife, the
party indided will not know what charge he
is to defend himfelf againft. The defcription
of the offence in a convi£Uon ought to be
quite as particular, or perhaps more fo, as in
an indidment ; becaufe a convidion is a fum-
mary proceeding.
Thefe words m the prefent convidion, the
robbery not being felony by the laws of this realm^
are not a fufficiently particular defcription
of the offence. The manner of the ftealing
ought to have been ftated ; that the court
might have judged whether it were felo-
nious, and confequendy whether the juf-
tice had a jurifdidion. If a tree cut down
be ftolen out of an orchard, this is felony.
If a perfon come into an orchard in the day
time, and fhake apples from a tree ; and af-
terwards come in the night and take them
away, this is felony.
There
Eaftcr Term 28 Geo. 2. 1755. 205
There is another reafon, why the offence .
in the prefent conviftion ought to have been
defcribed more particularly ; namely, that the
court might have judged, whether the money
ordered to be paid was an adequate recom-
pence to the party injured. In the cafe of
Regina v« Burnabp Lord Raym. 901. a convic-
tion upon this uatute was qua&ed ; becaufe
it was only ftated therein, that the defendant
had cut down divers lime-trees ; the opinion
of the court being, that the number of the
lime-trees ought to have been mentioned.
Rex veff. Lewis.
T TPON a motion for quafhing an indifl:- An india-
V^ ment ; the charge in the indictment ap- ment for
peared to be ; that the defendant, intending cheating
to cheat and defraud J. S. had fold to him '^ll^'l^ ^ ^
eight hundred weight of gum, at the price of J^^^n °^
feven pounds by the hundred weight ; falfely made ufc of.
pretending and affirming, that the gum was
gumfeneca^ and that it was worth feven pounds
by the hundredweight ; whereas in truth the
gum was not gum feneca^ but a gum of an in-
ferior kind, and was not worth more than
three pounds by the hundred weight.
As a ground for qualhing the mdiftment,
it was faid ; that as no falfe token was made
ufe of, an indidment will not lie; and the
cafe of Regina v. 'Jones ^ Lord Raym. i o 1 3. was
cited ; in which an indidment for obtaining
money upon a falfe pretence was quafhed.
A rule to fhew caufe was made ; which,
no caufe being Ihewn, was afterwards made
abfolute.
Rex
ao8
Eaftcr Term i8 Geo. 2. 1755.
^•'^
If matter of
6^9 as well
at matter of
record be put
in iflue, the
condufion
may be to the
country*
^O^/.
Efplin verf. Smollet.
AN adion of Scire facias bein^ brought
upon a recognizance entered into by
the defendant, as bail of y. S. the defendant
pleaded ; that judraient was figned in the ori-
final adion againft J. S. that a writ of Fieri
acias-w^s fued out upon the judgment ; and
that the money due upon the judgment was
levied off the goods of 7* S. The plaintiff
replied ; that a writ of fieri Facias was not
fued out upon the judgment againft jf. S.
and that the money due upon the judgment
was not levied off the goods of J. S. and the
replication concluded to the country.
Upon a demurrer to this replication, it was
holden to be good.
And by Ryder Ch. J. — ^It has been faid;
that as the fuine out of the writ of Fieri Facias
was a matter of record, the replication ought
not to have conduded to the country : But
we are of opinion ; that as the levying off the
goods, which was a matter of faft, is put in
iffue by the replication, as well as the fuing
out of the writ of Fieri Facias^ the condufion
to the country is proper.
An abfolute
rule for a
mandamus,
for proceed-
ing to an elec-
tion.
Rex verf. The Aldermen and Burgeffes
of the Borough of Heydon.
UPON a motion for a mandamus^ for pro-
ceeding to the eledion of a mayor of
the borough of Heydon^ it appeared; that
there was no eleftion upon the day appointed
by the charter, or upon the day next after the
day appointed by charter; and that the office
of mayor was vacant.
An
Eafter Term 28 Geo. 1. 1755. 209
An abfolute rule for a mandamus was made.
And by Denifon J. (Ryder Ch. J. being abfent)
it has been generally the pradice, in cafes like
the prefent, to make a rule to fliew caufe :
But we are of opinion ; that it is not neceflary,
in fuch cafes, to make a rule toihew caufe.
Green verf. Weflon.
IN a cafe refervedin an aftion of debt upon The devifec
a bond, itwasftated; that the defendant oflandis
was heir at law of Henry Wejion^ and alfo de- only ^^y^'
vifeeoffome land under the will of the faid ^.^J^J^et^
Henry Wejion ; that the bond, upon which the ^^e land dc-
aition was brought, was entered into by the vifed.
teftator Henry Wejion; that the defendant
pleaded ; that flie had fold the devifed land
for the fum of one hundred and fixty-eight
pounds, being the beft price fhe could get for
the fame, and had applied all the money the
fame was fold for, being one hundred and
fixty-eight pounds, towards the fatisfadion
of a judgment, figned againft her teftator
Henry Wejion during his life, for the fum of
three hundred and fixty pounds ; that the
plaintiflF replied ; that the defendant had not
applied all the money the devifed land was
fold for towards the fatisfadion of the faid
judgment ; that at the trial of an iffue joined
upon this replication, it was proved ; that
upon a treaty with y. S. for the purchafe of
the devifed land, he refufed to purchafe it,
unlefs he could purchafe therewith a tile-lhed
erefted upon the devifed land, which was the
property of y. iST. that thereupon the deferv
d?int purchased the tile-flied of^. iV. for the
fum of forty-two pounds, ai)td paid for the
£ e (ame
2IO Eaftcr Term 28 Gcol 2. 1755.
■ i.i '
fame with her own money ; that file did af-
terwards, in coniideration of the fum of two
hundred and ten pounds, convey th€ devi&d
land, with the appurtenances, of which the
tile-ihed was parcel, by leafe and releafe to
y. S. and gave a receipt for the confideralion
money upon the back of the releafe ; and that
file had paid the fum of one hundred and fixty-
eiffht pounds towards the fatisfa£don of the
faidjudgment.
The queftion was. Whether the plaintiff be
entitled to recover ?
It was holden that he is not.
And by Ryder Ch. J.— By the 3 fF. &f M.
€. 14. upon which ftatute the prefent adion
is grounded, the devifee of land is only to
account, to the fpecialty creditors of his tef-
tator, for the value of the devifed land. In
the prefent cafe, the value of the devifed land
was only one hundred and fixty-eight pounds;
the defendant's tile-flied, which was worth
forty-two pounds, being fold therewith ; and
the whole being fold for no more than two
hundred and ten pounds.
It has been faid ; that, as it is not men-
tioned in the releafe, that any part of the
confideration money, was to be paid for the
tile-flied, evidence ought not to have been
admitted, that any part of the fame was re-
ceived for the tile-flied : But we are of opini-
on ; that this evidence was admiffible. Sup-
pofe there had been a mortgage by the teftator
UfK)n the devifed land ; and, after the money
due thereupon had been paid off by the devi-
fee, the land had been conveyed by leafe and
releafe, he might cr^rtainly have given evi-
dence by wr.y of dedudtion of the payment of
this money, although it were not mentioned
in the releafe ;' becaufe, as to fo much, the
money
Eafter Term 28 Geo. 2. 1755.
211
mobey received for the devifed land would
not be aflets ; and the fame reafon holds, for
admitting the evidence, by way of deduction,
4:hat forty-two pounds, parcel of the two
hii|ldred and ten pounds, was not received
lbx^4^ devifed land.
Rex veff. Newfliam and Others, Com*-
mon-CounciW^n of the Borough of
Carmartlien.
UPON a rule to fliew caufe, why a manda-
mus fhould not be awarded for proceed-
ing to the elcftion of a mayor of the borough
of Carmarthen^ it appeared ; that by a by-law
made in the reign of Queen Elizabeth^ the
right df eleding a mayor ot the borough was
v^fted in the major part of the common-coun-
cU-men of the borough ; that this right had
ieen ever fince that time exercifed by the
major part of the common-counciUmen ; that
upon the day appointed by the charter for the
eledion of a mayor, a mob took poffeffion of
the town -hall ; that upon the fucceeding day,
another mob did the fame ; that upon the lat-
ter day y. S. was elefted mayor by the bur-
geffes at large ; that J. N. who prefided at
inc election of J. S. was not the next perfon
In rank or office to the prefent mayor, ther*
being, at the time of that eleftion, three
other perfons nearer in rank or office to the
prefent mayor than J. N. that the common-
council, which when compleat confifts of
twenty perfons, does at this time confift of
only eleven; and confequently, that as not
jefs than eleven common-council-men can eleft
a mayor, if a mayor be not elefted, before
pn^ of the prefent common-council men fliall
A mendanuu
for proceed-
ing to an
ele^on may
l>e awarded,
although
there has
been an elec-
tion defaBo.
212 EafterTerm 28 Geo. 2. 1755.
happen to die, no perfon, fuppofing the right
of elefting to be in the major part of the com-
mon-conncil, can ever be elefted mayor.
One queftion was, whether a mandamus can,
in the prefent cafe, be awarded ?
It was upon great confideratign holden,
that it may.
And by Ryder Ch. J. — ^It has been faid ; that
this court is, only empowered by the 1 1 G. 1.
c. 4. to award a mandamus^ ** where it fhall
" happen, that no eledion of a mayor, or
*' other chief officer of a city, borough or
" town corporate Ihall be made upon the day,
^' or within the time appointed by charter or
^' ufage for that purpofe ; and that no eledion
.** of fuch officer fliall be made purfuant to the
** direftions of this ftatute ; or fuch eleftiou
** being made, fliall afterwards become
** void ;*' and it is inferred ; that as there has
been, in the prefent cafe, an eleftion defado
of a mayor, and that eleifHon is not yet de-
termined to be void, the court cannot award
a mandamus for proceeding to an election of ^
mayor. But we are or opinion ; that the
words no eledion in that ftatute, ought to b^
conftrued no 'legal eledion ; and confequently,
that although there has been an eleftion d^
fadOj the court has a difcretionary power,
upon confidering all the circumftances of the
f ledioi), to award or not to award a manda-
mus^ as the juftice of the cafe may require. If
on all the circumftances of an ele6Uon defailoj
the leg^ility ^hereof be doubtful, the court
ought not to award a mandamus ; it being in
fuchi cafe proper, that the legality of the elec-
tion fliould be tried in an information in the
nature of a quo warranto ; But if upon all the
circumftances of an eledion defado^ it appear
plearly to be illegal, tl^c court ought to awar4
a man^
EafterTerm 28 Geo. 2. 1755. 213
a mandamus ; bccaufe it would, in fuch cafe,
be nugatory, to try the legality of the eledion
in an information in the nature of a quo war^
ranto.
Another queftion was. Whether a mandamus
ought, in the prefent cafe, to be awarded ?
It was holden that it ought.
And by Ryder Ch. J.— *The court does not
mean to give any opinion as to the right of
election ; but, in whomfoever that right may
be, the eleftion of J. S. appears cleany to be
illegal. It was in a riotous manner ; and the
perfon, who ought to prefide at the ele£lion
of a mayor, did not prefide thereat. The
circumftance, that the common-counciUmen
are reduced to the loweft number which can
deft a mayor, is like wife of great weight in
the prefent cafe ; for if the right of eleftion be
in the major part of the common-council-
men, and any one of the prefent common-
council-men fhall happen to die before there
is an eleftion of a mayor, there never can be
an eleftion ; and confequently, the corpora-
tion muft be diffolved.
The rule was made abfolute : But it was or-
dered to be therein inferted, that the manda-
mus is to be without prejudice to the right of
eledion ; and that it fhall be direfted to the
common-council-men generally, and not to
any one or more of them by name. It was
likewife ordered, that the names of two in-
different perfons fhall be inferted in the rule
for the mandamus ; by whom fix days notice,
at the leafl, fhall be given of the day appointed
for the eleftion.
Bennet
-t J lullcrTerm 28 Geo. 2. 1755.
hupnrn to die, no pcrfon, fuppofing the right
ot'dccVmg to be in the major part of the com-
inon-conncil« can ever be elected mayor.
( h)c quclHon was, whether a mandamus can,
in thoprcfcnt cal'e, be awarded?
It wus upi^n groat confideratign holden,
thut it uu}\
And by Vjr.Ar Ch, J. — It has been faid ; that
thJs vvurt t^ only empowered by the 1 1 G. 1.
*\ 4* to award a ruiuiamusj " where it fliall
*' hap{vn* that ^.' t^L^K^hn of a mayor, or
** v>tUcr chivrf otKocr of a city, borough or
** tCNvn cv^r^vrate Ihall be made upon the day,
*^ v^r within the time appointed by charter or
** u^A^"^ tv^r that rurpi^ic ; and that kc elcciion
*^ o4 ;uk h K>«Sof r thall be made purluont to the
'^ s^;rxVt50i'M5 o^' thb ttatute ; or luch elecliou
"^ Nrts"^ ::u..'>* thill atter>»TLris become
*^ \-oi\t\^* jixvi ;: 5> i; .tirrr?vi ; tKit i> there his
v^f i ;?:^ixvNr^ Ji^Ni tii: i^^'e>.'Ti'^2: i> noc yet de-
i»j^\vc^ Ptfc: >fc^ ir:? c/ cobi.^ ; lii: ib?
till: jaJtKNJ^i :^r;: ij^ S^rs: iz ceit5nr *2.'
yivx 3^ :i«f^ii.x^ ^c iitf cfisr jr^Tf rx^^i^irr. i'
EafterTcnr. z'. ixs,- • ^^r
a mandamus ; bccanit :* -wtiu^ z .n. ^^
be nugatory, to tr^" tnt ^
in an information ir ict
ranto.
Another qucfiior Tra: ^^ i^narr- ^ 'i- ■— ^
ought, in the pracr: ait i i.-r zras-r
It was holder: ihs: :: oisr:-
And by iJvfl>^ Ci. * — liz-. -zryr- vjrr^
mean to pve any oniinr- i ' ■-i.r'-rj::^
dedion ; but, ir. -^nyiui'jrr^rr Lszr- f^?
be, the election of ^. 1 »isar
illegal. It was in 2. noi'jL ri-a^
perfon, who ough: v. vrtw-^ ^
of a mayor, did nc: yf*:i3i
drcumftance, that tiit '^*jiiuw^
are reduced to tht iowk-. uixu*^.
electa mayor, is liii^vkii-. **f^*^
the prefent cafe : for ir u*^ 115^. ^
in the major par: or' u»-.
men, and any one o- u»-- |#iw',
coundl-men fhaL ua|i}#*:j ^
is an election of a luavf- i^^-.^-^^^^
an ele6tion ; and coiuc^^^^o. .^ ^ _
tion muft be difibivt':, '
^rhe rule was mauf. auiw*. . t . j^,
dered to be thereiji ium^*-^^ ^^J^'J'
mus is to be witLoui pii:^i^,^j,^ /^T j
eleftion ; and tiiar ir Ujj^ *sjJv
common-councii-ii#«:;. ^j^i-c^ , - ^'^ ^'^'^
any one or more oi tL«^ ^ '^^f i/%
likewife ordererj, Uui ^^^ > ^^'-it
different perfon:, liijii; \0-^^^^ '"'^ »«^
for the mandamui , i#;^^ "' ''"• »\»'*^
atthelcaft, lliall lk.^I^TJJ^ n^*,.,-^
H4 Eafter Term 28 Geo. 2. 1755.
JBennet vttf. Hart.
Awriccf TTPON a rule to fliew caufe, why a writ
«nv*y ^ ^ of enquiry fhould not be swarded, for
^^^^ affeffing the treble damages given by tbe 43
cfuebkdap ^''2;. c. 2. it appeared; that the a£Hoii was
maget. brought on account of fomethingdone by the
defetidant, as overfcer of the poor, byvirtw
of his office ; that there was a verdid for tfat
defendant \ that the jury aflefifed only £nglt
fiamages ; that there Vas no fugg^ion up^
the fojha ; and that the muftis had refided to
allow more than iingle coils.
The rule was made abfohite.
And by the court ■ I t has beeft faid ; that
^% fingle cofts have been taxed, the prefent
ii|)plication is too late : But we are of t>pimon ;
ihat as the taxing of fingle cofts was not at the
•define of the defendant, the cowrt is not pr&-
tluded by the aft of the mafter^ who refiafed
tt> allow more cofts, from awarding a wnt of
•enquiry. As a ground for awarding a writ
of enquiry, it is neceffary to enter a fbggeftion
«pdin the pofieu ; that the defendant was an
4)verfeer of the poor 5 and that the aftioji was
%>rougbt againft him fbr fomethiog done by
^rtue of fis oflSioe.
Re:^
Eaftcr Term 2d Geo. 2. 1755. 115
Rex nacrf, Lawfbn*
UPON a rule to fhew caufe, why a mandofK Further time
iTUtf ihould not be awarded, for admit-* for the trying,
ting the defendant to the office of clerk of the Uf^^^J^^
peace of the county of Surry j it appeared j * "^ ^^
that upon fhewing caufe to the rule at a for-
mer day, a feigned iflue was ordered by con?
fent, to try whether the right to the office was
in the defendant, or in J. S. that the record
of the iffiic was entered by J* S. at the office
for the county of Surry ; and that he after-
wards withdrew the record.
The quefiion was, Whether further time
ought to be allowed to J. S. for trying th«
iffiie*
It was holden that it ought not.
And by the court— As it docs not appear
that, there was any good reafon for with-
drawing the record, no further time ought to
be allowed.
Thomlinfon wrf. Brown.
UPON a rule to fliew caufe, why judgment An aaion will
fbould not be arretted, it appeared ; that lie for the
the a<Elion was an action upon the cafe ; that P^'^r ®^*^?
it was brought by the owner of the inheri- a^honfe'fbff "*
tance in a noufe againft his ow^n leffce, for topping up
Hopping up divers windows of the houfe. windows.
The rule was difcharged.
And
ai6
Eafter Term 28 Geo. 2. 1755.
And by ^hc court— It has been faid ; that
as the nufance to the houfe, by flopping up
divers windows, may be abated, before the
defendant's term is expired, the plaintiff can-
not at prefent maintain an adiion againft his
own leffee for flopping them up : But we arc
of opinion ; that the plaintiff may at prefent
maintain an acHon for the injury to his inheri-
tance, by obflrufting the ingrefs of light and
adr into the houfe ; and that this adion does
as well lie againfl the plaintiff's own leffee, as
againfl any other perfon.
The penden-
cy of a prior
adion cannot
be pleaded in
abatement.
Baines verf. Blackboume.
IN an adtion of debt, brought for the exer-
cife of a trade contrary to the 5 JB//z. c. 4.
the defendant pleaded in abatement; that a
prior adion was depending for the fame
matter.
Upon a demurrer to this plea, it was holden
to be bad.
And by the court— The pendency of a prior
aftion for the fame matter may be pleaded in
bar to a fecond adion : But it cannot be plead-
ed in abatement.
An informa-
tion againft
juftices of the
peace for re-
fafing to grant
licenfes.
Rex verf. The Juflices of the Peace for
the Town of Nottingham.
T TPON a rule to fhew caufe, why an infor-
vJ mation for a mifdemeanor ihould not
be filed, it appeared; that the defendants,
who were juflices of the peace for the town
of Nottingham^ liad refufed to grant licen-
fes for twenty publick houfes in that town ;
that
Eafter Term 28 Geo. 2. 1755* 217
that licenfes had for fome years paft been
granted to the occupiers of thefe houfes ; and
that the occupiers of thefe houfes and the de-
fendants had, at a contefted eleftion for that
town, a fhort time before the time for licenf-
ing publick houfes, had for different candi-
dates.
The rule was made abfolute.
And by Ryder Ch. J. — It has been truly
faid ; that the power of licenfing publick hou-
fes is fo abfcflutely in the difcretion of the juf-
tices of the peace, that this court will never
award a mandamus for the licenfing of a pub-
lick houfe : But it is equally true ; that the
abufe of a difcretionary power ought to be
more feverely punifhed than the abufe of a
power which is not difcretionary. In the pre-
fent cafe it appears manifeflly, that the power
of licenfing publick houfes was very grofsly
abufed ; for it is not probable, that the occu-
piers of twenty publick houfes ihould all have
fo mifbehaved themfelves at the fame time,
as to make U improper to grant them licen-
XJppendale verf. Lightfoot.
UPON a writ of error, the error affigned A plaintiff
was ; that the plaintiflF in the original may profecutc
»aion had profeeuted his fuit in perfon, and ^^^^^^
not by attorney.
The judgment was affirmed.
And by the court It is lawful for the
plaintiff in an a^ion, to profecute his fuit in
perfon.
luit in
Ion.
F f Rex
f ■ -i
2l8
Eaftct Term 28 Geo. 2. 1755,
An affidavit
oaght not to
be entitled,
vnlefs there
be (bme
caufe depend^
log in the
court.
Rex vtrf. Laurence.
UPON a rule to flicw caufe, why an in-
fofftiation for a mi£dettieanbr, Ihould
not be filed, it appeared ; that the affidavit,
upon reading of which the rule was made,
was entitled Rex v. Laurence.
The rule was difcharged.
And by the court—^Thfe affidavit whereupon
the motion for this rule ^ks made, ought not
to have had any title ; bfecaufe, utitil the rule
was made, there was no caufe, under the
name of Rex V. Lburehce^ det)endi!ig in the
court.
Huffey vtrf. Welby.
A Scire Fact' T JPON a rule to fliew caufe, why the pfo-
Af upon a lu ceedings upon a Scire Facias mould not
rted^or^ be fet afide for irregularity, it appeared; that
by a new at- the Scire Facias J which was brought Mpbh a
torney without judgment, was notfyed out by the attorn^,
the leave of ^ho had been concerned in the original ac-
the court. ^Jq^ . ^^at the leave pf the court had not been
obtained for changing the attorney ; and that
no notice had been given pf the attorney bc-
ihg changed.
The rule was difcharged.
And by the court— If the attorney retained
in a caufe be changed during the ciiuie, with-
out the leave of the court, ot if notice be not
given that the attorney is changed, Ihefubfc-
cjuent proceedings are irreguliEir: But as a
Scire Facias upon a judgment is a new ac-
tion, in which there ought to be a new re-f
tainer^
Eafter Term 28 Geo. 2. 1755. 2^9
tainer, the Scire Facias may be fued out by a
new attorney, without the leave of the court
for changing the attorney, or giving notice
that he is changed.
Williams veff. Williams.
UPON a motion to ftay the proceeding in An afBdaTit
an ^ion, upon the ground of the ac- that only a
tion's being below the dignity of the court, f^all ^i/n of
an affidavit was oflFered ; in which it was al- ^^3 ^o^pct/'
ledged ; that no more than the fum of five mittcd to be
{hillings and eight pence was due to the plain* read,
tiff.
No rule was made; the affidavit not being
pei^mitted to be read.
F f 2 Trinity
220
Trinity Term,
28 & 29 Geo. 2. 1755.
Sir Dudley Ryder, Chief Jujiice.
Sir Thomas Denifon, '
Sir Michael Fofter, > Juftices^
Sir J. Eardley Wilmotjj
Goddard verf, Law.
TN an aftion of affumpjit^ the defendant, an
it may be re-
jcdcd.
If that which ■ , f ^"^ / . ' r
is contained A executor, pleaded ; that at the time of
under TLfcilicet exhibiting the plaintiflPs bill, he had fully ad-
be repugnant, miniftered.
The plaintiff replied ; that at the time of
exhibiting his bill ; to wit, eight days before^
the defendant hadaffets in his hands.
Upon a demurrer to this replication, it was
h olden to be good.
And by Ryder Ch. J. — It has b^en faid ; that
if iffue be joined upon the replication, the de-
fendant will not be allowed to ^ive evidence
of any money paid by him witliin the eight
days
Trinity Term 28 & 29 Geo. 2. 1755. aai
days preceding the time of exhibiting the
plaintiflPs bill : But we are of opinion, that
he may give fuch evidence : that the words
eight days before j which are contained under a
fcilicet^ and are repugnant to the pofitive alle-
gation in the replication, ougI%iiot to be re-
garded.
Doley verf. Pitftow.
AN a£lion of debt being brought upon a An um])ieage
bond, and Oyer being prayed of the. is good, al-
bond, the condition appeared to be; that the though it be
defendant fhall perform the award of ^. B. ^^ i^e, dio-
and C. D. fo as an award be made by them, fen before the
on or before the thirteenth day of March time for nuk-
then next enfuing ; otherwife, that the defen- , |ng an award
dant fliall perform the umpirage of fuch per- ** expired.
fon as fliall be chofen umpire by the faid A. B.
and C. D. fo as the umpire fliall make an um-
pirage, on or before the feventeenth day of
the laid March. '
The defendant pleaded; that A. B. and
C. D. did not make an award on or before the
faid thirteenth day of March ; and that no
perfon was chofen umpire by them, after the
faid thirteenth day of March.
The plaintifi* replied ; that before the faid
thirteenth day of March^ to wit, upon the
eleventh day of that month, E. F. was chofen
umpire by the faid A. B. and C. D. and that
an umpirage was made by the faid E. F. on
or before the faid feventeenth day of March.
Upon a demurrer to this replication, the
queftion was, whether the arbitrators could
choofe an umpire, before the time allowed
for their making an award was expired.
It
>gt Trimty Ticvm ^ft & 2^9 Ge©. a, 1x55.
It was upon ^rcat confdention holden tlut
they might*
And by Ryder Ch. J — ^Thc caScofReynMt
V. Grayj Saik. yo. has been cited and relied
upon ; in which it was faid by Hok Ch. J. that
arbiti^tors caippt chqoie an uippire, until the
time allowed for their making an award i& ex-
pired. It does not appear from the report of
that cafe in Salkeld^ or from another report
thereof in Lord Raymond 222. whether there
were any words in tbejrule.of court,^ by which
the arbitrators were appQ^nted, to r^ftitin
them from choofing an umpdf^e, until the time
allowed for making an award is expired. If
there were fuch wprds in the rul^ that cafe
is of no authority in the prefent die, where-
in the arbitrators are not fo reftrained. If
there were not fuch words in the rule, we
are of opinion ; that the cafe is not law. hx
the cafe bf . yennings v. Vandeputfy Cro. Car.
263. it is laid down ; that arbitrators may
choofe an umpire before the tinxe allowed for
their makuig an award is. expired ; and that;
an umpirage made by the umpire, fp chofcA
is gooQ, in cafe the arbitrators do not make
an award within th?it time. The fame is laid
down in the cafe of Wat/an v. Mitchell^ % RoJL
Abr 262. and in that of Elliot v. Chevaly i
Luiw. 41. In the cafe of Cordw^ll v. Maf*
karellj Trin. 17 G. 2. in this court, the autho-
rity of thefe cafes was recognisjed ; and it
was therein holden ; that an umpirage made
during the time allowed for making an award
is good, in cafe the arbitrators dp not mgj^e
an award within the time.
Sir
Trinity Term ft 8 & ft^ Geo. 2. 1755. aa$
Sir Tofeph Hankiy and Compiany t;^
Wilfon.
T TPON a rule to flicw caufe; why a new AAual proof,
\j| ttiai ihould not be had in an adion of that Ac name
ifffumg/it^ it appeared; that the adion was P^*/A°^^^
brought by tte plaintiflfe, ^ indorfe^ of a 1^,^^^^
faul of exchange; that the defendant had ao always neoeT-
cepted the biH ; that there was no adhial proof^ fary.
that the name of one of the indorfors of the
bin isdfhishaiid-Vtrrititig; that the name of
that indorfor, and the names of all the other
indotforit were upon the bill at the time of its
bdng accepted ; that at the time of his accept-
ib^lt, thfe defendant'promifed to pay the bill;
and that upon this evidence, which was leffc
by Rider Uh. T. to the jury, a verdift was
found f(*r the piaintilBfe.
The qufiftion was. Whether -upon this evi-
dence the matter ought to have been left to the
jury?
It was holden that it ought.
And by thfe court-^It is in the general ne-
ceffary, to give adiial proof, that the name
of every indorlTbr is of his hand-writing : But
it is not neceffafy to do this in every cafe. In
the nrcfent cafe, it was a matter proper for
the determination of the jury, whether the
acceptance of the bill, when all the indorfot^
names were upon it, together with the pro-
mile to pay, did not amount to an admiffion,
that the name of every indorfor is of his hand-
writing; in as much as, fuch an admlllion
would fuperfede the neceffity of aftual proof,
that the nam« pf-any indorfor is of his hand-
writing.
Brenan
124 Trinity Term '28 & 29 Geo. 2. 1755.
Brenan vcrf. Currint.
If there be a TN a cafe refcrvcd, in an adion of Trcver^
fpedal agree- J[ it was ftated ; that an agreement" was en-
^\ ^'S/of teredintoby the plaintiflFaud the defendant,
^ttiDbg a ^ whereby the fum of ten ihillings and fixpence
duog deliver- was to be paid to the defendant, a farrier, for
edis theieby curing the plaintiflPs mare of a diftemper, as
^■^^^ foon as (he ihould be cured, and likewife a
reafonable fum of money for keepipg the
mare, until ihefhould be cured; that in pur*
.V fuance of this agreement, the mare was deli-
^ vered to the defendant; that after the mare
was cured, the plainti£f tendered the fum of
ten fhillings and fixpence to the defendant for
the cure, and at the fame time demanded the
mare ; that the defendant refiifed to deliver
the mare, unlefs the plaintiff would pay a grofs
fum of money for the cure and keeping of the
mare; and that the action was brought for the
converfion of the mare.
The queflion was, whether the defendant
had a right to detain the mare ?
It was holden that he had not.
And by Ryder Ch. J — As the fum of ten
fliillings and fixpence, the fum agreed t;o be
paid for the cure, was tendered to the defen-
dant, he certainly had not a right to detain
the mare on account of the cure.
It has been faid ; that a farrier has a right
to detain a beafl delivered to him to be
cured, until the money due for keeping the
beafl is paid or tendered: But it is not neceffary
to give any opinion upon this point ; for altho'
w.e fhould be of opinion, that a farrier has,
Trinity Term 28 & 29 Geo. z, ^"JSS* ^^S
" ' ' I 1 1 I ,1 ^
in the general, fuch a right ; yet it vvbuld be
clear, that the defendant had not in the pre-
fent cafe a riglit to detain the mare ; becaiife
his general right to do this, in cafe he had fuch
a right, was waved by the fpeciai agreement,
that a reafonable fum of money was to be paid
to him for keeping the mare, until (he ftiould
be cured.
iicx verf. Bathurtf.
IN an indidkment for a forcible entry,' it was If any count
charged in the fir ft count ; that the defen- ^° •" '^Pf^^
dant did unlawfully and injurioufly, with force ™^J^ j^^
and larms, and with a ftronghand, enter into a ^la'ment is
toefluagc ih the peaceable pofleffion of the gbod^
profecufor, againn the form of the i^atute. In
the fedohd Count it wad charged ; that the de>
jfendant did unlawfully and injurioufly, with
i^rce aftd iarms,* enter ihto the dwelling houfe
oftheprofecutor.
Upon a demurrer to this indidkment, oiie
quefiion was, whether tne firft coutit be good?
The juftices were all of opinion y that this
count i^ not go6d upon the ftatute, becaufe it
is hot therein fjbewn, what eftate the profecu-
tor had in the meffuage ; for he migfht be only
tenant at will, and if he were fo, a forcible en-
try upon the meffuage is not an offence againfE
the ftatute.
Ryder Ch. J. and FQfi& J. were of opinion ;
that although the firft count be not good upon
the Itatute, it is, notwi^hftandiog the conclu-
fion thereof, good at the common law: And
Fqfter J. nientioned the cafe ofPage v. Harwoqd^
All 43. ih which it was hoJden ; that, notwith-
G g ftanding
226 Trinity Term 28 & 29 Geo. 2. 1755.
■i T I II - •
(landing the offence charged in an Indiftment
be not an offence $gainu a ftatute^ and the
conclufiori of the indidtment be againf! the
form of the ftatute, the perfon indilked may
^ be found guilty of an offence at the common
law, in cafe the offence charged be an offence
at the common law. He added ; that forcible
dntry is an offence at the common law, and
hoi one created by the ftatute ; for that the
ftatute does only^ by ordering poffeflion to be
reftored, give a more fpeedy reniedy.
£>emf(m J. admitted ; that a count in an in-
didment may, in fome cafes, be good at the
common law, although the conclufion thereof
be againft the form of the ftatute i But as the
entry is charged in the firft count in the pre-
fent iiididtment to be into a mefluage, And t6
be with a ftrong hand, which words are con-
tained iii the f&tute againft forcible entry, be
doubted whether that count, as it appears to
be a count upon the ftatute, be good at the
common law. He added ; that in 2 if. ff.
PL C. it is laid down ; that if a perfon be indift-
ed upon a ftatute^ and the charge in the in-
diftment do hot bring him within the llatute, he
fhall not be put to anfwerupoft this indidtniienf
for an offence at the corrimon law.
fVtlmot J. gave rto opinion upon this quef-
tion.
Another queftion wasj Whether the fecond
count be good ?
It was holden that it is.
And by Ryder Ch. J. — ^It has been faid;
that as the entry is not charged in this count to
be with a ftrong hand, as well as with force and
arms, there is not a charge of adlual force ;
in
Trinity Term t8 & 29 Geo. 2. 1755, 227
in as much as, the words force and arms which
are contained in the declaration in every adlion
of irefpafsj do not neceffariiy imply actual
force. As the words with a ftrong hand arc
contained in the llatute, it is necelTary that
thefe words (hould be contained in an indidt-
ment upon the llatute : But it is not neceffary,
that thefe words (hould be contained in an in-
didlment at the common law for a forcible en-
try. The words force and arms, in an indidl-
ment at the common law for a forcible entry,
do always n^ean actual force y and if iffue h^d
been joined in this indidment upon the plea of
not guilty, adual force muft have been proved,
or the defendant could not have been found
guilty upoq the fecond count ; an entry with-
out actual force being no more than a trefpafs.
It is alledged in this count ; that the defen-
dant had not a right of entry into the profecu-
tor's dwelling- houfe J and the defendant by
demurring has admitted that he had not : But
if he had, his obtaining poffeffion thereof by
force was tortious j and it would be extremely
hard, that the profecutor, who had been tor-
tioufly deprived of the poffeffion of his dwell-
ing houfe, (hould, in order to recover it, be
forced to fubmit to the trouble, expence and
delay of an ejedment.
It is material \ that the entry is in this count
charged to be into a dwelling houfe ; for a
dwelling houfe is of great regard in the eye of
the common law. A dwelling houfe is called
a man*s caftle •, and upon the idea of its being;
fo, it is lawful for him to affemble perfons to
a(rift in the defence thereof. The offence of
burglary at the common law cannot be com-
mitted, unlefs the houfe broken and entered
G g 2 were
2x8 Trinity Term 28 t(c 29 Geo. a. 175^.
urcrc a dwelling houfc. It: is. in the gencar^j
Ufilawful, tp break open thjB dpor of a dvyeliing
houfe ; although it he done to execute tb(^
procefs of the la)¥.
A3 V^ are all of opinion; th^t thc^fccqndj
count is good, it would 1^ to no purpqfc, to
let this cafe ll^nd QVcj: for confideratipn a^ tq-
the firft count ; foi whatever might, be the u}*!
timate opinion of the court as to that cpuqfi
there miift, as one coui^t is gpod^ be judgr
riient for the king,
B^K,vfrf. ThelnhabitaRUpfHpriJ^y;
The fon of a T^. an order, of feffions. it^ wa|, fta/edi that
ccrii6catcd JL the J^aupr wa$. born it\ the p^jrUh pf £&^!$i^
man may Jckt^^ ^W^i- his father refided th^e under ai
gain afcitlc- certificate from the f^iftipQiGers diH^i^^ ad-
hiring and dreffed to. the parilb oQicers of m^gfch^h^,
fcr«ict in a that at the age of twelve years he w^. hir^ fori
third pariih. 2l year 1^ t|ie parilh oi Peck^ and ferved the
year.
'The queftjon was, Whether t\i^ PiOfpcr daii
gain a fett lament in the pari(h of Peckf
It was holden, that he did.
And by the court — The cafe of Ren v. 7%i,
hhahitatus of Siltm^ Hil. 21 G. z. is aiaipftin
point. It was in that cafe hplden ; that the^
fpnof a certificated man, whp wa^ born in .the
pari^ oi ifVincantm, during his father's refir
dence.thjefe under a certificate frorn the parifli.
pfficers of Sikont^ addreif^d to the. parifii officers:
of fP^/ncantm,y gained a fettl^roent. by ferving.
^san aj^remjoe iq the pari% ottiorMigum.
Trinity. TeiiTi zb & %^ Geo. z. 1755. zzg
Rex ^erf. Hanfon.
UFON a motion to quafli an indi^ment Anlndid-
foracheat, it appeared j that the de* P«"'' y*''^^
fendant, intending to deceive and defraud J. bad^wght^
S. pretended and affirmed to him^ that (he no to be
wa^ a Qngle woman, and that her name was quaihed.
Fufkr i by. me^ns whereof (he obtained credit
trpm J. f., for board and lodging to the
a^oujDt of: three pounds ; where^ Ihe was in
truth ^ iparried woman^ and the wife of a poor
Labouring man of the name oiHanf(m.
A rule; to (hew caufe was riefufed^
Apd. by Ry4er Ch J. — ^We are inclined to be
of opinion i that the indictment is good : But
\%y^, not noc^flary to give a^ pofitive opinion as
t^thati for unleis an indi^ment be clearly
hfAi v^hich the indictment in the prefent cafo
OVtAitlly 18 npty the court will not quafh it
VLex verf. Nichols aixd Another;
AMMifanmi having been awarded, whereby ^he coftf»
, the defendants, who were juftices of^^^J^.*^
the. peace, wiw^ commanded to appoint over- ed^toUe wmT
feers.of the doof for H^alfal Foreign^ the return ordered,
li^s ; that H^alfd Foreign is not a diftinCt dii» ought not to
vifion from ^^1^^ Borough. be paid.
A rule wi|s afterwards made, to (hew cau(e,
why an information (hould not be filed again(l>
f he defendatiits for a falfe return.
Upon
230 Trinity Term 28 & 29 Geo. 2. 1755.
Upon (hewing cai^fe to this ri|le, a feigned
iffue was with confent ordered, to try whether
fVofJol Foreign be a diftindt divifion from JVair
fal Borough • and it was inferted in the rule for
the feigned iffue, that colls (hall abide the
event of the trial.
It being found by a verdi£t, that WdfcH
foreign is a diftinA divifion from WaJ^al Bo-
rough, and a peremptory Mandamus being
awarded \ the queftion was. Whether the de-
fendants ought to pay the cofts of the rule for
the iffformation, which were incurred by the
profccutor before the feigned iffue was ordered?
It was holden, that they ought not.
And by Ryder Gh. J. — It has been faid ;
that if the rule for the information had been
made abfolute, and there had been a verdi£t
againil the defendants, the court, unleis they
would have confented to go before the mafter,
would, as has in fome cales been done, have
fet a fine fo large, that the third part thereof
might have been fufilicient to reimburse the
profecutor his coRs, or at leaA a confiderable
part therisof ; and it has been inferred \ that
as the queftion would have been the fam^
upon the information, as it was upon the
feigned iffue, the cofts of the rule for the infor-
mation ought to be paid. But all this pro-
ceeds upon a miftake ; for as the queftion in
the information would in effedt, have been a
queftion concerning a civil right; namely, whe-
ther Waljal Fgreign ought to have feparate-
overfeers : The court, although there had been
a verdiA againft the defendants, and they
had refufed to go before the mafter, would
;)ot have fet a large fine.
We
Trinity Term 28 & 29 Geo. 2. 1755. 231
-
We do moreover defire to have it under-
ftood ; that, whatever may have been hereto-
fore done, the court will not for the time to
come fet a larger fine, in any cafe of a convic-
tion upon an indidlment, than the nature of
the offence does require ; ahhough the perfon
conyiAed refufes to go before the mailer.
Rex verf. The Inhabitants of High and
Low Bifhopfide.
IN an order of fefllions it W2ls ftated; that Only the j^t^
Jonathan Jtrfe refided fome years in the pa- rifli,to whick
rilh of High and Low Bifhopfide^ under a certifi- ? ^^^"^^'?
cate from the parifli officers oiMemmth cumDar- can avail k-
ley^ addreifed to the parifh officers of High and fdf thereof.
Lm Bijh9pjide\ that during his refidence under
thecertificate, he purchafed a houfeili the parifii
oiDacre cum Buerley for the fum of ten pounds^
and went to dwell therein ; that upon his go«
ing to dwell in this houie, he carried the certi-
ficate, under which he had refided in the pa-
rifli of High and Low Bijhopfide^ and delivered
it to the parifli officers oiDacre cum Buerldy ; and
that the Pauper ferved an apprenticefliip with
Jonathan Joye^ whilft he dwelt in the parifli of
Dacream Buerley.
The queftion was. Whether the Pauper did
gain a fettlement in the parifli of Dacre cum
Buerley t
It washolden that he did.
And by Ryder Ch. J. — No parifli is by the 8
i£ 9 ^- 3* c. 30. obliged to receive a perfon
under a certificate, unlefs the certificate be
addrefled to its officers ; and confequently, no
parifli,
Z3% Trinity Term 28 & 29 Geo. 2. 1 755.
parifh, except the parifh to the officers of which
a certificate is addreffed, cart avail itfelf of
the certificate. The delivering of the certifi-
cate to the parifti officers of Dacn cum Buerkj^
befides being nugatory, was quite unneceffary ;
in as much as Jonathan Joye had a ri^t to
dwell in the honfe he had bought wrthout a
Certificate. It may be inferred^ from the 2
Jim. r. i8. by which it is provided^ that dA
apprentice to a certificated man (hall not gain
a fettlement in the parilh, to the officers of
which the certificate is addreffed, that fuch aa
apprentice may gain a fettlement in any other
parifli.
Afhworth verf. Lofrd^
If there be a J JPON a rule to Ihew caufc> ^hy judg*
w one of U «acnt ftiould not be anrcftftd ih ih afttoh
nothings, of covenant, it appeared $ that the kdixoti wsik
it it not ne- brought Upon a covenant in a leafe, ilhd^r
ccfTary to ^hich the defendant was bdund to pay ahhu-
E!caio*n ^lly ^® ^^ Plaintiff two bejtt^ or in lieu thereof
which fhall one (hilfing, at the ele£tidn of the plaintiff ^
be paid. and the breach affign^d wa]% that the dfefeii-
dant did not pay eithet the tAfro hens ot the
fhilling.
The rule waiJ difcharged.
And by Ryder Ch. J.-^It hib bifett faid ; thit
the plaintiff ought not to have judgmehl, be^
caufe it is not alledged in the d^c^laratiolri, that
he had made an eledlion. If the brtech affigti-
ed were, that the defeiKlaiit did not pay bnb
of the two (hillings^ thi^ plaintiff rtiuft hdve
ailedged, that he had made an ek£lioh to
have that thing paid : But as the breach af-
figned is, that the defendant did not pay ei-
ther of the two (hillings, it wa6 not neceffary
for thepldntifftoalledge^ that he had made
an ele£tion»
Rex
Trinity Term 2b & apGeo. 2. 1755. /3?
Rex verf. Rochi
TH E defendant, who had been conviAed An affidavit;
upon an indidtment for an affault, be- ^/ofVhich
ing brought up for judgment^ an affidavit ^^ cjjaence
was offered, in order to mitigate the punifh* was ^iven at
ment, ini which it was alledged$ that previ- i^c trial, wa«
oufly to the affault, the profecutor had very°^^^P^"^
much provoked the defendant : But it did not ^^^^
appear ; that any evidence was given of this
at the trial.
The court would not permit the affidavit
to be readi
And by Ryder Ch. J. — If there werd fuch
provocation, evidence ought to have been
given of it at the trial ; that being the proper
time for the defendant to have availed himfelf
thereof.
A
Grdbn verf. Haffel.
N attorney had delivered two feparate Anattofncy'i
^ ^^ bills ; ode of which was for fees and dif- bill for mak-
biirfements in caufes, the other for making **"g^®"^^yr,
' ^ ances may W
conveyances. \^xt^.
Upon a motion that both bills might be re-
ferred to be taxed^ the cafe oiDaifim v. Hart"
tUffe was cited ; in which the Court of Chancery
orders otie bill of a folicitor for fees' aridi di^>
burfementd in caufes, and another for making
conveyances to be taxed^
A rule was made tq (hew caiufe, which, no
caiife being (hewn, was afterwards made ab
folute*
H h Clark- '
234 Trinity Term 28 & 29 Geo. 2. 1755.
Clark verf. Glafs..
If ft trafcrft JN an adtion of debt upon a bond, the de-
^o?cMt- ^ fendant pleaded -/that the bond was exe-
t^ple^d, cuted by him through force and reflraintof
it muft con- Imprifonment.
elude to the The plaintiff replied; that the defendant
comtry^ executed the bond of his own free will ; with-
out thiSf that he executed it through force and
reilraint of imprifonment, and concluded with
an averment.
Upon a demurrer to this replication, the
queftion was. Whether the conclufion, be
good?
It was holden, that it is not.
And by Bydtr Ch. J.~Thc true diftinaion
as to this point is, in our opinion, taken in
the cafe of Haywood v. Dcpvis ondAtiother^ Farr.
105. namely, that if a traverfe be only tea
particular fadt of the plea, it rn^ft conclude
with an averment : But if to the whole plea, it
muft conclude to the country^ Iir the pre-
fent cafe, the traverfe is to the whole of the
plea i and confequently, the concliifion ought
to have been to the country.
Cope verf^ M^rfhall.
mcnrJihfd' -T T^^^ a rule to (hewcaufe, why thede-
ilJg'a'nct ^' ILJ clafation in an adion of tre^afs (bould
right of aai^ not be amended, by adding the words, and free
on, refufcd. Cliafc^
Trinity Term a8 & 29 Geo. z. 1 ^55* ^3S
Oiafe^ after the Words free IVarreny it appear^
ed; that the plaintiff* had alledged, that
the defendant broke and entered his free warr»
ren ; and that the adtion had been commenced
more than two terms.
The rule was difcharged.
And by the court— *By the amendment in-
tended a new right of a^ion would be alledg-
ed ; a free chafe being quite a different thing
from a free warren. It is likewife probable^
that the defendant, if the amendment (hall be
permitted, will be rendered incapable of mak-
rng any defence. As the declaration now
jlands, he may prefcribe for a right of com-
mon in the free warren ; becaufe a right of
free warren muft always be founded upon a
grant : But, as a right of free chafe can only
be acquired by prefcription, the defendant will
not be able to prefcribe for a right of common
in the free chafe ; it being a rule of law, that
one prefcriptive right cannot be fet up againft
another. The cafe of Bearcrrft v. The Htm*
4reds (f Burnhan and Stone ^ 3 Lev. 347. has.
been cited ; in which, after the plaintiff* had
alledged in his declaration a robbery of himfelf,
leave was given to amend, by alledging that
the robbery was of a fervant. The cafe of the
Executor f of the Duke of Marlborough v. IVidmore^
Hil. 4 G. 2. in this court, has likewife been
cited ; in which, after the plaintiffs had alledg-
ed in their declaration a promiife to their tefta-
tor, leave w^s given to amend, by alledging
a promife to themfelves. But the amendments
in both thefe cafes, were allo\yed upon the ve-
ry particular circumftances of the cafes. In
the former cafe, which was an adlion upon the
Hatute of Hue and Cry, the time for bringing
H h 2 a new
276 Trinity Term 28 & 29 Geo. 2. 1755^
a new adtion was expired. In the latter cafe,
which was an adion of ^Jfumpjft, as the defend-^
ant had pleaded the flatute of limitations, the
plaintiffs miifi not only have failed in that ac-
tion, unlefs leave had been given to amend :
But it would have been too late to bring a new
a^ion ; iix years being elapfed fince the pro-
mife was made to themfelves. In the pre^
fent cafe, the plaintiff may difcontinue and
bring a new adion ; and confequently there
is no neceffity to depart from a general rule of
law ; namely, that an amendment, by which
a new right of adion would be alledged, oughf
not to be permitted. The giving leave to
imend in the prcfent cafe would, moreover, be
contrary to another general rule of law ; which
is, that fuch an amendment as amounts to the
adding of a new count, which the amendment
intended certainly does, ought not to be per-'
mitted, after the adion has been commenced
twotermg.
Doe on the Demife of Barnard and Fen**
ton verf. Reafon.
^ remain- T N an aftiori of Ejeftment, it was found by
dcr, limited J[ a fpecial verdid -, that Edward Brogden^ be-
^y r n *?* '2/ i"g ^^i^^4 ^" ^^^ ^^ ^^^ premises in quelVion, der
fiJdotsaU^^^^^ them in the following woi:ds: *♦ 1 give
ways veft eo " and devife all my meffuages in Leeds to my
infiante the *' wife Elizabeth^ for the term of her natural
icflaior djes. u {jf^^^ without impeachment of wafte ; and
** after her deceafe, I give and devife the fame
** to Elizabeth Crofon my niece, for her natural
*^ life, without impeachment of wafte; and
** immediately after her deceafe, I give and
*^ devife the fame to fuch iflue of the body of
** my faid niece, as (hall be then living \ and
« tQ
Trinity Term 28 & 29 Geo. z. 1755. 237
*• to the heirs of fuch iffue ; that is to fay, in
** cafe ther« (hall be only fuch iffue one child,
** then I give the whole to that one child and
** its heirs ; and if there (hall be iffue two or
** more children, then to fuch two or more
^^ children equally amongft them, (hare and
^^ (hare alike, and the heirs and affigns of
^^ fuch two or more children, to take both
^^ freehold and inheritance as tenants in com*
^^ mon, and not as joint tenants ; and in cafe
** my faid niece (hall die without iffue of her
*^ body then living ; or in cafe all fuch iffue
^ (hall die without iffue, fo that all and every
^^ the defcendants of her body (hall be dead
** without Iffue, then, and not before, I give
*• and devife all the aforefaid premifes to my
^^ coufins Thwnas Barnard and James Fentcn^
^* their heirs and affigns for ever.*^
It was likewife found that upon the teflator's
death in the year 1744, his wife entered ; that
upon her death in the year 1750, Elizabeth
Crofm entered ; that (he afterwards intermarri-
ed with the defendant 5 that in Trinity Term
1751, the defendant and his w|fe fuSered a
common recovery, and declslred the ufes
thereof to themfelves for life^ with remainder
to the defendant in fee ; that the defendant's
wife died in Oaober 1752 j that (he never bad
any iffue of her body ; that James Fentoriy one of
the leffors of the plairttiff, is one of the devifees
of Edward Broaden ; and that Thomas Barnard^
the other leffor of the plaintiff, is the eldeil fon
and heir of the other devifee Thomas Barnard.
The qucftion was. Whether the leffors pf
the plaintiff ought to recover ?
It was holden, upon great confideratidn^
that they ought,
Aa4
%2% Trinity Tferm 28 & 25 Geo. 2. 1755.
And by Ryder Ch. J. — If has been (i^d;
that the devtfe to 7 homos Barnard and James
Fenton may take eflfeft, by way of executoiy
devife : But we are of opinion^ that as it may
take cfFedl by way of remainder, it qinnot
take efledt by way of executory devife. Ijl
the cafe of Purefcy y. Rogers^ 2 Sound. 588. it
was holden \ that wherever a reniiainder v& ii^li^
cd upon an eftate of freehold, which is capa«
ble of fupporting a remaiiuler, the limitafton
(hall never be deemed an executory devife.
It has been (aid \ thzX an ei^ate in fee is de*
vifed to the iiliie of Elizabeth Orrfon. If this
were fo, the devife to f homos Barnard and
James F^on would certainly be void ; becaufe
no efiate can be limited upoA a fee : But we
are of opinion ^ that only an e(late tail is de-
vifed. An eftate in fee would certainly have
pafled, by the words in the former part of tiiis
wili^ to x\\t\S\xtoi Elizabeth Crqfon :^ But it ap-
pears from fubfequent words^ to be themani-
feft intention of the tefiator, that the iifue
ihould only take an eftate tail ; and it is a fet-
tied rule in the conftruAion of a will, that the
meaning of former words therein contained
may be reftrained by fubfequent words.
It has been faid \ that the remainder devifed
to ThQmas Barnard and James Fentm was contin-
gent ; becaufe its taking effect depended upon
the contingency of Elizabeth Crg/bn*s dying
without iflue : But we are of opinion; that it
was a vefted remainder, afid confequently,:
that it is not barred by the recovery. If a re-
mainder be limited by 9 will to a perfon in
EJjfe at the time of the teftator^s death, it does
afways yeft co inflame the teftator dies; al-
though a contingent remainder^^ which, if the
contingency
Trinity Term ft 8 & 29 Geo. 2. 1755. 239
Contingency whereupon it depends had hap-
pened, would be antecedent thereto, be limit-
ed by the fame will. In the prefent cafe, the
remainder to Thomas Barnard and fames Fenton
did veft at the time of Edward Brogderis death;
although the remainder to the iflue ofElizabesh
Crqfon could not veft ; becaufe there was not at
that time any child of Elizabeth Crcfim. The
rttosAndtt to Thomas Barnard ^nd James Femm^
in cafe a child had, after the death of Edward
Jirqgden^ been born of the body of Elizabeth
Cr^an^ would have opened, in order to Jet in
the remainder that child : But it would never*
theleis have continued to be a vefted remain-
der, and uppn the event of the child^s dying
without ifiUe would have (hut agiun.
Rex verf. Powell.
UPON a rule to (hew caufe, why an in- Aa inforaia-
formation in the i;iature of^quo warranto ^" ^®' ?^^
fliould not be filed, it appeared; that the in- JJ^J'^^cWfc
formation was moved tor on account of the may be filed,
defend^t'^ having execute^ the franchife of a although the
freeman of a corporation ; and that the defen- Jr*"^^5* "^
dant bad furrendered the franchife before the^'^™"^^^-
rule was mad^ to (hew caufe.
T|^ f u^ was made abfolute.
And fay the court— It does not appear clear-
ly, that the franchife was furrendered in the
proper manner : But if it were, the defendant^
in cafe he had not a right thereto, ought to be
punifhed for the ufurpation. It is neceflary
that there ihould be, iii a cafe like the prefent,
a difclaimer upon record. If there be not, no
puniihment can be infli£ted upon the perfon
who has ufurped the franchife 3 for the court
cannot
An twa^dy
bj which
eofts are a*-
warded ^e-
ncnWj, IS
good.
Trinity Term 28 & 29 Geo. a. 1755.
cannot fet a fine for the usurpation, unlefs
there is fu^h a difclaimer.
U'
A rule for
ilajing the
proceedings
m an a^ioa»
upon the
payment of
what is due.
Refiifed.
Ptrty verf Nicholfon.
'PON a rule to (hew caufe, why art
award (boufld not be fet afide, it ap-
peared; that cofts were awarded; and that
the fum to be paid for cofls was not afcertained.
The rule was difcharged.
And by Ryder Ch. J.— It has been faid ; that
as the fum to be paid for cofts is not afcertain-
ed, the award is bad for uncertainty: But
the award is not bad on that account ; for the
fum to be paid may be afcertained i^ the offi^
cer of the court, whofe province it is to tai
cofts. In the cafe of Fumis v. Hallmn^ z Barn.
140. it was holden by the court of Common
Pleas, in a cafe like the prefent, that the cofts
might be taxed by one ot the Prothonotarie$.
Mitchell verf. Robinfoii»
A Motion beinfg made to ftay the proceed-
ings in an adtion, upon the ground of
the addon's being below the dignity otthe court,
an affidavit was ofFeredy it which it was altedg-
ed ; that the fum of forty (hilling is not due to
the plaintifF; and it was faid, that in the court
of Exchequer the proceedings in actions have
been frequently niaid upon fiich affidavits.
A rule to (hew caufe, why the proceedings
(hould not be ftaid, was refufed ; the affidavit
not being permitted to be read«
And
Trinity Term 28 &: 29 Geo. 2. 1755. ^4'
And by Dm/oH J — ^This court has always
objeded to the reading of fuch an affidavit :
But the matter has been fomctimes referred to
the Mafter.
An abfoliite rule was made, for referring it
to the mafter, to fee what is due to the plain-
liff; and that upon the paiytnent of what is
due, with the cofts of tne adtioii dnd of this .
application, the proceedings (hall be fiaid.'
Rex vetfi Davies;
A Motion was tnade upon the laft day 6f An infori^a-
thi^term, for a rule to (hew caufe, why tion is not to*
an information in the nature of a gmwartanta^^^T^f^
(houH not be ftlerf. SJJ^of a
The court, upon being informed by the fe- term,
condaty of the Grown CMfce, that by the prac-
tice of court fuch a rule ought not to be mov*
ed for upon the lafk day of a term, refiifed to
make a rule to (hew caufe.
But tienifm }. inclined to f>e bf opihion ;
that the pradice of not moving upon the lail:
day of a term, for a rule to (hew caufe why
an information (hoUld not be filed, is confined
to an information for a mifdemeanor, and does
not extend to an information in the nature of
zquowarrama.
Michaelms^
2/^
Michaelmas Term,
29 Geo. »• 17S5*
Sir Dudley Ryder, Chief Juiict.
Sir Thomas Denifon, 1
Sir Michael Fofter, Kjujliw.
Sir John Sardley Wilmot, J
Re:sc verf. Lediard;
Anidforma- T TPON a fule to (hew caufe^ w^y an fif-
lion filed a- \j formation for a mifcfcmeanor fliould
See rfVe ^""^ ^ fi'^^^ '^ appeared ^ th^t J. S. had been
peace, for committed to pnfon by a juftice of the peace,
improperly for feducing feven workmen in the mami&9-
difcharging a ture of glafs to go out of this kingdom into a
pnfoner. foreign country ; that the defendant, who wa»
alfo a juftice of the peace, had difcharged 7. &
upon a recognizance being entered into for
his appearance, by which he was hiiiifelf bound
in the fum of one thoufand pounds, and two
other perfons in the fum of five hundred
pounds each j that the two perfons were, in
fadl, worth nothing ; and that J. S. imme-
diately after his difcharge, went out of the
kingdom.
The
Michaelmas Term 29 Geo. 2. 1755. ^43
The rule was made abfolute.
And by Ryder Ch. J. — ^It has been faid;
that the defendant might be ignorant of the
poverty of the two perfons who entered into the
recognizance \ But it was his duty, before he
difcharged the prifoner, to have made a ftrift
enquiry as to their circumftances. Befides the
defendant's failing in this, the fum in which the
recognizance was entered into, is much too
fmall ; the punifhrnent, inflicted in fuch cafe
by the 23 G. z. c. 13. being a penalty of five
hundred pounds, and twelve months imprifoi^*
ment, for every workman feduced
Dnimmond and Catharine his wife, ad--
miniftrators of Aflie verf. The Duke
of Bolton.
N adtion of debt being brought upon a The pcnaltj
bond, in the penalty of fix thbufandofabondis
A
pounds, and Oyer being prayed of the bond, "°?^ ^^^^/^^
the condition, after reciting that a marriage was pj^^of a dff-
intended to be had, between the plaintiff C^junaivcconl
tharine daughter to the defendant, who was at dition cannot
that time Lord Harry Paulef. and William AJhr^ ^\ pcrform-
appeared to be ; that ff the defendant fhill pay
or fecure to the fsiid^ Catharine^, or to her chil-
dren by the faid JVilliam Ajhe^ three thoufand
pounds, within fix months after the defendant
(hall become Duke of Bolton^ then the obliga-
tion to be void.
The defendant pleaded ; that William Aflie
died without leaving any child born of the bo-
dy of the plaintiff Oi^A^rw^, before tne defend-
ant bectime Duke of BolttM ; and that thfe
plaintiff Gi/Wm^ was not with child at this
time of the death of the faid fFitUam A/He.
I i % Upon
244' Michaelmas Term 29 Greb. i. 1755.
; • . . ' ■ I ■■ — — ' '
Upon a (Jemurrer to this plea, it was holden
to be bad.
And by the court — Laughter-s cafe, 5th
Rep. 12. has been cited and rehed upon; in
which it is laid down, that if the condition
of a bond, confining of two parts, be in
the disjunftive, and the performance pf one
part, which^ as well as the performance of
the other part, was poflible at the time of
entering into the bond, be rendered impof-
fible by the ait of God, the penalty is faved;
3ut >ve are of ppinion; that this dodbine,
which docs not appear to be laid down by the
court, but to be the reafon ^iven by the re-
porter for the judgment of the. court, is laid
down too largely. It 15 ^ g^aergl rule, tbjat the
intention of the parties is tp be rejg^rded in the
conftruftion of a deed ; and it feems very rea-
fonable, that this rule (hould be obferyed in
icopftruing the condition of ^ bond. If the
plaintiff Catharine^ at the tirpe the clefendanj
pecame Duke ofBobon^ had one pr pore chilr
dren by fVitliapi AJhe^ it WQuld, perhaps, have
been in the defendant's po>ver, to pay the
three thoufand pounds to her, or to the child
or children : But it never could be the intention
pf the parties, that the money (hould not be
paid to the plaintiff Catharine^ in cafe (he
fliould not have a child by fVilliam AJhe^ at the
time the disfendapt (hould become Duke of
Bohon. T^he confequence of adhering to the
doftrine of Laughtfr'^ cafe would be, that in
pafe the plaintiff d/A^riW had beep dead at the
time the defendant became Puke oiBoUm^ and
feveral children of hers by fViUiam A/hc had
been at that tunc living, thofe children would
hot have been entitled to (he money.
Coupland
Michaelmas Term z^ Geo. z. 1755. 245
Coupland wr/T Frinbow.
UPON a writ of frror^ brought upon a a writ of
judgment of the court of Common enquirj io^n
Pleas by default, the error affigned was j that ?^^" ^y ^^
the writ ofen^ry^ which was returnable upon "j^f^' jf L
a general return day, ought to have been re- rctuilablc
turnabie upon a day certain ; the action, which upon z gener
was againft an attorney^ being commenced by ral return
bill, and not by original. ^^Y-
The judgment was affirmed.
And by the court — ^In the cafe of Launder v.
Cripps^ HiL 6 G. %. in this court, wherein the
fame matter was a0igned for error as is done
in the prefent cafe, it was holden to be only a
jnifcontinuance, and that it is f:ured by the
^XMVt^oiJetfaiU.
Rex verf. Ponfonb^ and Eight OtherSt
UPON a writ of trrt^^ brought upon a^ judg^^j
judgment of the court of Kine's Bench of ^ufter czn^
in Ireland^ it appeared ; that in an information "o^ ^ g'^^n
filed in the court of JCing^s Bench in /''^/W, ^' J^ wT
it was charged ; that the defendants had ufurp- J^ inforoiari-
cd the fr^nchifes of free Burgeffes of the cor- on in the nzy
poration of Newtown in Ireland), that the plea »«>•« of a 7«^f
of the defendant Ponfoyifiy and one other ot the •«««^««f^-
defendants was, that they were duly eleded
free burgefles, but that they have neither beeri
fworn free Burgeffes, nor have executed the
franchifes t and they tr^verfed the ufurpation ^
ithat the plea of the other (even was, that they
were duly elef^ed free burgeffes and fworn, and
they likewife traverfed the ufurpation; that thq
replication^
S46 Michaelmas Term zgGto. z. 1755.
replication as to the plea of the two defendants
was^ that ^ue n6tide has bten giveit them of
their being eledted free burgeflfes, and that
they have negledted to be fworn ; and as to
the plea of the other feven, that by non-rcfi-
dence, and negledt of attending and doing
their duty as free burgeffes, they have forfeit-
ed their franchifes, and have ceafed to be free
burge0es \ that the rejoinder by the two defen-
dants waS) that due notice has not been given
them of their being elededfree burgeffes \ and
by the other feven, that at all times fmce tlieir
being ele^d and fworn free burgeffes, when
they were duly fummoned, and had no lawful
excufe to be abfent, they have attended and
done their duty as free burgeffes^ that upon a
general demurrer, there was judgment againft
all the defendants ; and that part oftfae judg-
^ ment was, that the defendants (hall be ouiled
of their fraachifes.
The judgment was, upon great cdnfiderati-
on, reverfed.
And by Ryder Ch. J. — The ancient method,
of proceeding againft the ufurper of a franchife
in a corporation, was by writ of mo warranto:
But this has been long difcon tinned, and intiead
thereof, the pi;oceeding has been by informati*
on in the nature of a quo nvarranto. By the 9
4nn. c. 20. it is enaded, " That* in cafe any
** perfon, againft whom an information in the
^* nature of a quo warraniOy (hall be filed, (hall
" be found, or adjudged guilty of anufurpa-
** tion or intru(ion into, or of unlawfully hold*
** itijg and executing the franchife of burge(s
^^ ofa corporation^ it (hall and may be lawftit
•* for the court, as well to give jud^nent of
" Oufier againft fuch perfon from his franchife,
*♦ ^ to fitic fuch perfon," Judgment oiOufter
had,
Michaelmas Term 29 Geo. %. 1JS5* 247
had, before the making of this ftatute, been
given in fome informations in the nature of
guo warrantors againft the perfons found or ad-
judged guilty of ufurfwng franchifes in corpora-
tions : Uit in the cafe of Rex v. Bemett^ Trin.
4 G. I. the judges were equally divided in
opinion upon thequeftion. Whether judgment
of Oufter ought to be given at the common
law, in an information in the nature of a ^
warranto f As the judges were in that cafe
equally divided in opinion ; and as there has
not been frnce any determination upon the
point, we arc of opinion ; that judgment of
Oujier ought^not to be given in an information
in the naturi^of a quowarramo^ unlefs the cafe
of the perfon found or adjudged to be guilty
be witmn the ftatute.
We are likewife of opinion ; that the cafe of
the two defendants is not within the ftatute.
As thefe defendants neglected to be fwom, the
corporation might either have compelled them
to be fworn, or might hav=e elefted other per-
fons to be free burgeflfes : But as they were not
fworn, they were never in poffeffion of the
franehifes % and confequently, they could ndt
be liable to a judgment of Oij^r, for ufur^^ng
or intruding into, or for unlawfully holding
and executing the franchifes.
We are likewife of opinion; that the cafe
of thefevendefendants is not within the ftatute.
It is not neceffary for the court to give an opi-
nion ; whether the non-refidence of the feven
defendants, and their negle£t of attending and
doing their duty as free burgefles, were i^
fa£lo a forfeiture of their franchifes j becaufe if
that we:e fo, the defendants did, upon the
forfeiture^ ceafe to be burgeffes ; and confe*
quentlyi they coukl ncK afterwards be liable
' ■f©
248 Michaelmas Term 29 Geo, 2. 1755.
to a judgment of Ou/ler. In Lx)rd Bruce^s cafe,
Mich. 2 G. 2. in this court, it was holden ^ that
if a perfon have been guilty, of, any things
which amounts to an actual forfeiture of his
franchife, the franchife does thereupon become
vacant, and another period may be elected irt
his room.
It has been faid ; that although tlie non-re*
(idence of the feven defendants, and their ne-
fledt of attending and doing their duty as freie
urgefTes^ were not ip/ofaSo a forfeiture of their
£:anchijfe, they were a good caufe of amotioQ.
It is not neceflary for the court to give an op-
nion i whether the non-refidenoe^ and negleft
of the defendants were in the prefent cafe a
good caufe of amoving them;' becaufe, how-
ever that may be, they could not be table to a
judgment of OuJ^er^ until they were aftually
amoved. They could not be guilty of ufurp*
ing or intruding into the franchifes, becaufc
they came lawfully into pofleificHi thereof;
and as they had not only a right to hold the
franchifes,^ but Were bound to do their duly as
free burgefles, until they were ad^ually amov-
ed, they could not be guilty o^ unlawfully
holding and executing the franchifes.
It has been faid ; that the power of amotion
inay not be given to a corporation by charter,
or that^ tf it be given, the corporation may^
frohi jfome corrupt motive, negledt or refufe to
exercife it ; and it is inferred, that there mull
fometimes be a failure of juftice, unlefs judg-
ment of Oufier can be given in an information
m the nature of a quo warranto^' although there
has not been an amotion, it was refolved in
iagg's cafe, 1 1 Rep. 09. that a man- cannot
fee amoved from his franchife in a corporation,
before he has been convidted of fome crime^
imleis the corporation have the power of amo-
tion
Michaelmas Term 29 Greo. 2. 1755. *49
tion by charter or prefcriprion : But it h^s been
holden in dirers modern cafes, that the pow-
er oFamotion is incidental to every corporation.
It is not to be intended ; that any corporati*
on will, for a corrupt motive, negledl or re-
fufe to eXercife its power of amotion ; and if a
corruption (houldj from fuch motive, negleft
or refufe to exercife it, yet thefe would not be
a failure of juftice ; in as niuch as a Mandamus
may in fuch cafe be awarded.
It has been faid \ that although the court
(hould be of opinion, that the cafe of the two
defendants^ and the cafe of the feven, are
both within the llatute, yet the judgment
ought to be reverfed ; for that the cafe of the
two defendants is fo different frpm that of the
feven, that a joint information in the nature o£
a qm warranto cannot be filed againft the nine:
But as we are of opinion % that neither the
cafe of the two defendan{^^ nor the cafe of the
feven, is within the ftatute, and confequently^
that the whole judgment muft be reverfed, it
is not necefiary to give any opinion upon this
point.
Rex verfi Grew, Coroner of Middlefex^
IT was found by an inquifitlon taken by the Thcf edn/e
defendant » that only the near fore wheel ought oo^ to
of a waggon did move to the death of a man ; comradift
;ind that only the ne^r fore wheel was forfeited i^J^J^f '^^
as a Deodand. a matter of
Upon a motion to qua(h the inquifition^ it het.
was (aid to be exceedingly improbable^ if not
altogether impoffible 5 that only the near fore
wheel of a waggon (hould move to the death
of a man.
A rule to (hew caufe was refufcd.
Kk And
tjD Mictiaeltnas Term 19 Geo. %. 1755.
^— ^— — lati* I !■! I I I I I I r I
And by tho court^^As the queftioa in this
cafe watt queftion of fa^^ and the jurors have
found, thtt only the near fore wheel of the
waggon did ino¥e to the death of the man, the
court ought not to q'uafli the inquifitton.
Abciy verf Dickenfon.
Theboobof ¥: TPON t rtiotion, for a rale to infpcft
m^u'Kor L/ apd take copies of the books of the
t "bcwfpca- commiffibns for Trcenfing hackney coaches, ii
cd, unlefs appeared that the defendant was an officer un*
thcj trc par- der the commiffioners ; and that the atfkion,
•"*'• which was an adion of trefpafs, was broagUt
againft htm for taking a diftreis^ for a pendtj
inffidted by the commiffioners upon the pUdnr
tiff.
A rule was refufedi
And by the c6urN^At the eommiffiorters
are not jMir ttes tathe cftion^ the plaintrfftnigfat
not to have the liberty of4nrpe€tin!g atid ttldhg
copies of thetr books.
Howard verf Chefhire.
A certificate TN a Cafe referred iit^n a6Hon of trefpafi,
Mon the 43 J[^ ij ^as ft^jgd ; that the aftion was brought
b&n to be ^^ ^^^S « ^^^^ i ^^^ ^^ defendant jttlft-
good* fkd the taking as agem to general ObAfioi^^
by viTtne of a refenrationin a I^feof land frotn
the general to thepkintiff^ that iffM was join-
ed upon a travcrfe of the defendant*^ being
agecft to the general 1 that a verdift, with
on^ penny damages was found for the plab^
tiff; and that there was b certtfieate i^poa the
The
Michaelmas Term t^ Geo. 2. 175^^ 2^
The tjueftioii wab, whether the plamtifF
ought to have any more calls than damages?
It was holden by Dmfm J. and F^er J. (Ry^
der Ch. J. and IVilmot J. being abfent) that he
ought not.
And by Demfan J.— It has been faid ; that
this is not a cafe^ in which a certificate ought
to be granted upon the 43 Eliz. c. 6. an inter^
ed in land being in queftion, and the cafe of
.Hfj/ir V. finch^ % Lev. 234. has been relied up-
on ; in which it was holden^ that the plamtifi^
for whom a vcrcbA was found upon ah iffue
joined on a plea of cnira viam^ was entitled to
fill! cofts. But in that cafe, theexteM of the
W^y^ and coftfeauently an interefi in land^ was
directly in queftion; whereas in the prefent
cafe, the tf&ie is collateral to the phuntiff's ia*
teceft in the land demifed*
Leathle;)r verf. Webftcr.
IN an adion for money had and received tt) a by-lavir
the plainritPd; ufe, it was fi>und by a fpe- which is no-
dal vendia ; that the company of cutlers in ^*'*^^"^ ®'
M/wjfcr^ in the county ofr^r*, which were ^^JJ^j^'' *
incorporated by the z\ Ja. i . r. 3 1 . have a void.
X)wer given by thalt ftatutc of making fuch
>y-laws as are not contrary to the law of the
And ; thiat in the year 171)^1 the company
made a by-law, whereby it is ordered, that
theclerkof the company (hall receive fifteen
(hillings for every pair of indentures of appren*
ficefhip which (hall be inrolled by him^ and
th»t it (hall be referred to the mafter and war*
dens of iht company, to afcertain how much
of the fifteen (hillings (hall be deduced for the
benefit of the company ; and that the clerk of
the company had iAfifted upon and received
K k a fifteen
4
•nr
252 Michaelmas Term 29 Geo. 2. 1755.
fifteen (hillings from the plaintiff for the enrol*
ling of a pair of indentures, by which the plain-*
tifi's fon was bound an apprentice to a meai-
ber of the company.
Thequettion was, if this by-law be good ?
it washolden, that it is noti
And hy Ryder Ch. J — ^Thc by-law is void for
uncertainty ; in as much as it does not fay,
how much of the fifteen (hillings (hall be de-
duced for the benefit of the company ; but
refers it to be afcertained by the mailer and war*
dens, how much (hall be dedu£ted. As it
does not moreover appear, that the mafter
and wardens have ever afcertained the fum to
be deduced for the benefit of the company,
the clerk had no right to receive any thing on
that account^ If this by-law were not void for
uncertainty, it would neverthelefs be void •, bc-r
caufe it is contrary to the 22 ^. 8. c. 4. where-
by it isenadlfed: ^t that no mailer,, wfirdens,
** or fellowfhips of crafts, take from hence*
f forth of any apprentice, or of any other per*
** fon, for the entry of any apprentice into their
f* fellowfhip, above the fMfi? of twp (hillings
t* aqd fixpenpe.'^
Rex ve?/. Hellicr.
B'lt arti- T T^ON a rule to (hew caufe, why a w/wi
c\e8 o( the" IJ dams (hould not be awarded to two juf-
peace muft tices of the peace in the county, to take a re-
bc put in in cognizance for keeping the peace, it app ared \
thj> court, ^j^^j articles of the peace had been exhibited in
this court ; that the defendant was in prifon ;
and that he was fo poor, as not to be able to be
at the expence of a Haieas Corpus for bringing
him up to this court.
The rule was djfcharged.
And
Michaelmas Term 29 Geo 2. 1755. 253
And by the court.<^— Ithas always been doubt-
ed ; whether a recognizance for keeping the
peace can be taken by juftices of the. peace,
upon articles of the peace exhibited in this
court. There is only one inftance of late years,
wherein a mandamus for taking fuch a recogni-
sance has been awarded ; and in that cafe,
which was the cafe of Rex v. JLewis^ Trin. 3 G.
2. there were very particular circumftances ;
namely, that the defendant was feventy years
of age ; and that he was (b infirm as not fo be
^ble to travel*
Jlex v^ Griffith.
UPON a motion for an attachment for aThecofls
refcue, a feigned iffue was ordered, to tntccedcnt
try whether the defendant had been guilty of aj°*5®!^^'
relcue« cd iffuc ar«
A verdift being found for the defendant, only to be
the qudftionwas whether he ought to have the paid,
cofls of the motion, as well as the cofts of the
feigned iflfue ?
It was holden; th^t he ought only to have
the cofts of the feigned iffue.
And by the court — There is not any differ-
ence betwixt the prefent cafe, and the cafe of
a feigned iffue, ordered upon 4 rule to (hew
caufe why an information (hould not be filed ^
and it has been frequently holden, that in the
latter cafe only the cofls of the feigned iQue
pught to be paid,
Harris
254 Micbaelma3 Term 29 Geo. 2. 1755.
Hvris verf. Wakemaa.
Acuftom T TPON a writ .of JSrror^ brought upon
which «• \^ the judgQKflt of an inferior courts it
£uc?r •W^'^^d * ^*^*^ ^n ^ *^^«^ rf debt, brought
citT, it good, *^^^ ^'^ ^"'^ ^f *^. H**yof of Wwt^^ the
* ptjiintiflfallodged iq bis decUration^ 4hat he b
chamberlain of the city oifV^rc^er^^ ibat Iqr
a cuftom of this city 00 porfim, not bc«^ a
fr^omai^ (hall feU or put to fate by ,fttsi& any
goods within the faid city, or the fiberliea or
Uiburbs thereof; that by another cuftom the
corporation have a power of maUng by*kws ;
that a bylaw was made, whereby a penalty
of four pounds is infli£ted upon every pedbn
not being a freeman, whofhaU (hew« fell of put
to (ale any goods by retail within the Cud city,
or the liberties or fuburbs thereof, to be re*
cpvorcd in an action of debt brouglit In the
Mayor's court, in the name of the chamber*
Iain \ that one third of the penalty is to be
paid to the peribn who (hall inCbrm, and the
other two thirds to the trcafurer of the corpora-
tion for the benefit of the poor ; that iflue v^
joined upon the plea of nil debet | that by the
venire facias ^warded twenty-four jurors wer^
to be returned ; and that there was a verdidt
and juc)gment for the plainti^.
It appeared likewi(e from a bill of e3:ceptioDSi
that the jurors were freeemen ; that the judg*
es were members of the corporation 1 and that
the objedtions made at the trial upon the(e ac*
counts were over-ruled.
The judgment was, upon great confiderati*
on, a^med.
And
Michadtnas Term ap C^eo. 2. 1755. ^55
■
And by Rfder Cfr, J,-^Wb are of opmion 5
that the objeftion made at the trial to the
jurors and judges, were very properly orer*
ruled.
It has. been faid-, that a cxiftomof a city,
wWch extends to the ftrburbs of the city, is not
good r But we lire of opnion; that fuch ax!uf-
torn is good» In tbe caft of Th <Siy ofLmdm
Y^ Mmiyj I Roll: Abf. 557. it was WpFdcn;
that the cuftom of the city oi LondM^ to have
the meetage. of coals withmtbeport ofJLmddn^
extends, from Snunes-BriJk^ to jhtdaf. In the
cafe of Fazakerly v. ffikj/fare^ Trin. 7 0. u in:
this court, the authority of the cafeof 75ir City
if Loiubk V. Manley wai^TecORtn^ed; and it waff
therein holden \ that tfiexuftbm of thfe city, pf
Imdaa^ to have the meetagp^and^rterage of
com . and Tome other goods Vithin the P^t'of
Z;0iii^9'extendii itovsxSiakies'Bri^e UrjenM.
Ithasheenfaidj thatthecoitom, it beingia
teftraitit of trade, is not good;: But we are of
opinion y. that it is good. In^^amr*s cafe, 8^
Rip. itJS. it is laid dotm; that.a cuftonr in
reftraint (^ trade in a particular place is good.
It has f>een faid; that thb cuifom is not gb6d^
becaufe faixs and markets . are not exeeptedi
But it is not in our opinion necefiary that thefi .
Ihbuidbe excepted in fuch' a. cu^m. laJf^^';:
M0r*scafe9 fairs and markett. were not except*
ed, and yet the ctiftom was holtkn to ,be good:
It does not, moreover, appear to th^ coui-t;
that thiere are eidier fairs or markets in the
dty oiPf^arceftirn
It
256 Michaelmas Term 29 Geo. 2. 1755.
■ ■
It has been faid ; that the penalty inflidted
by the by-law is inflidted upon every perfon
who (hall (hew goods, whereas the cuftom does
only extend to perfons who (hall fell or put
goods to (ale : But we are of opinion ; that the
meaning of the word fiew^ and of the words
pia iofale^ is the very fame ; and if it were not,
a by-law may be good in part.
It has been (aid ; that it is not (hewn in the
prefent adion, in what manner the plaintiff
was eleded or appointed chamberlain, and
that it is not fufficient, for the plaintiff to al-
ledge that he is chamberlain ; becaufe this may
be alledged by any per(bn : But we are of opi-
nion, that it is fufficient for the plaintiff to al-
kdee that he is chamberlain. In the cafe of
Uwidge V. Uwgerford^ Pqfch. 3 G. i. in this
court, it was holden ; that it is not nedeifary,
in an adtion like the prefent, for the plaintiff
to (hew in what manner he was elected or ap^
pointed chamberlain ; and the fame has been
lince holden in divers other cafes.
* It has been faid ; that by the Venire FaAca
awarded in the prefent cafe, twenty-four ju-
rors were to be returned ; whereas no more
than twelve jurors ought to be returned for the
trial of a caufe in an inferior court : ^ut this, it
being only a mifaward of procefs, is cured by
the uatqtes oijecfails. In the cafe ofGibfon v.
Lmley^ ijo. 357. it was holdenj that the award-
ing of a Fetdre Facias^ by which twenty -four
jurors were to be returned for the trial of a
caufe in the court of Newcajiley was not error.
Rex
Michaelmas Term 29 Geo. 2. 1755. 257
Rex verfi Stephens.
UPON a rule to (hew caufc, why a writ A writ <///;»-
of fuperfedeas to a writ de cpicommunicaio^^'^^'^^^^
capiendo^ (hould not be awarded^ it appeared, hTldcnVo be
from ^fignificavit of a court of delegates, hoi- good,
den in Ireland^ to the Lord Chancellor o{ Great* ^
Britain^ that the court of delegates was impow- .
ered by the Lord Chancellor of Great-BrUain^ '
to hear an appeal of the defendant from a fen-
tence of the court of the Archbiflbopof Dublin }i
in a fuit concerning a will ; that the court of ' V
delegates affirmed the fentence of the Archbi-
fhop's court, and condemned the defendant ini
the funi of three hundred and thirty pounds for
colls } that the defendant had incurred the fen-
tence of the greater excommunication^ by his
contenipt in hot paying the cods ^ that the
fentence of the greater excommunication had
been duly given and promulged againft the!
defendant, by a prefbyter lawfully authorized
in that behalf by the court of delegates ; and
that the defendant had been openly and pub-
lickly excommunicated, by the authority of
the court of delegates, in the face of the church.
It did likewlfc appear ; that upon this^m-
ficmnt ia writ de excommunicato capiendo had been
iffued from the court of chancery in England ;
that the defendant was arretted thereupon j and
that he is now in cuilody.
The rule was upon great confideration dif*
charged.
And by Ryder Ch. j. — It has been fald ; that
the court of delegates ought not to have given
fentence, in as much as, it was only impowcr-
ed to hear the appeal : But the power of giving
L 1 fentence,
258 Michaelmas T'^nn 29 Gro. 2. 1755.
fentcnce was incidental to the power of hearing
the appeal ; and if fen te nee could not have
been given by the court of delegates^ there
would have been a failure of jufticc; for the
fuit could not have been remitted to the Arch-
bi(hop*s court.
It has been faid ; that although the court of
delegates had a power of giving fentence, it
•had not a power to delegate the power of giv-
ing fentence to a prelby ter : But we are of opi-
nion ; that the ad of the prelby ter, which ap-
pears to have been done by the authority of the
court, was the adt of the court. It is, more*
over, recited 'm tht fignificMit^ that the fen-
tence of the greater excommunication was du-
ly giveA, and a temporal court ought to give
credit to every judicial aft of an ecclefiaftical
court, in cafe the ecciefiailicai court had jurif*
diftion in the matter.
It has been faid ; that a writ de epcctmrntm'
cato capiendo ought not to have been iflfued from
the court of Chancery in England^ upon a Jigtii"
ficavit from a court of delegates in Ireland \
becaufe there is no cottitnunication betwixt
the Ettglijh and the Irijh courts of juftice: But
the court of delegates is not, in the prefent cafe,
to be confidered as an IriJh court of juftice. By
an IriJh ftatute, liberty is given of appealing
from a fentence of the court of the Archbifliop
of Dublin to the King, in his chancery in £1^-
land or in his chancery in Ireland \ and a power
is given by that ftatute to the Chancellors of
England and Ireland^ refpeftively, of appoint-
ing delegates for hearing the appeal. If the
appeal be to the court of chancery in England^
the court ol delegates may be, and frequently
is holden in England : But if it be holden, as
wias
^ r— ■ ■ -^ - — ^ . — J., . , ^
Michaelmas Term 2Q Gea 2. 1755. 2^9
was done iq the prefent cafe, in Ireland i yet,
as it is holden qndcr an authority derived from
the court of Chancery in England^ it is to be
con&deredasan Englijh court.
It has been Taid^ that as the name of the
prefbyter, by whom the fentence was given
and promulged, is not mentioned in the figni"
Jicauitj the Jignificavit is defedkiye; for that, in
cafe the defendant (hould fubmit to pay the
coils, there is no perfon to whom a writ to ab-
foive the defendant, or a writ de cautme aJmih
tenda can be dire^ed : But we are of opinion \
that either of thefe writs may and ought to be
directed to the court of delegates, and not to
the prefbyter by whoni the fentence was givea
$ind promulged.
Rex verf. Aldington,
UPON a motion to make a rule of «j^If an atto^- •
prim a rule of this court, an affidavit was Pf^ «xccc^
read, in which it wasalledged; that the rule f^^^jji''"^^^^
of ntji prius was entered into by the attorney fwer for it to
for one of the parties, without the confent of bis client,
the party or his council.
The rule of nifi priui was ordered to be m^de -t
a rule of this court.
And by the court— If an attorney exceed
his authority, and his client be thereby pre-
judiced, the attorney is liable to make fatisfac-
tion to the client : But it is a motion of courfe,
to make a rule of »j^/>r/«5 a rule of this court.
LI 2 Anonymous.
. ■■■ IHJ .1 ■ ■ ■' ■ ? J" .J ' .
260 Michapltuaa Term 29 Geo. z. 1 755.
Anonymous.
An wforijitt- y T PQ N a rule to (hew caufc, why an infoiv
Cl ~n"to U ^"^^tion fliould not be filed, it appeared;
mf^a/Av-tbat the defendant, who was an officer of a
^rr,whowas parilh hacl given a man money to marry a
fcrippi^. poor young woman, whofe fettlement was in
the parifh of which the defendant was an offi-
cer, and who was a cripple; whereby the
charge of maintaining the young woman wa$
brought upon the parilh, wherein the hufband^a
iibttlement was.
ThjS rule was made abfolute,
Howard verf. Chefliire.
Iftbcro^bcaT TPON a rule to (hew caufe, why the
certificate ^^ plaintifFfliould not have the coftsof a
£^"c^6*^ plea ofjuftification, it appeared; that in an
no'cofts'wc action of trefpafs the defendant had, with leave
to be paid of the court, pleaded not guilty, and a jufti-
pndcr the 4 fication ; that iffues were joined upon both
jfm. c. 16. pleas, that there was a verdift for the plaintiff
upon both the iffues, with one penny damages^
that the judge had not certified, that the de-
jFendant had a prpbable caufe to plead the mat*
ter pleaded in juftification ; and that there was
a certificate upon the 43 Eltz. 2. c.6.
The queftion was whether the plaintiff ought
to haye the cofts of the plea of juftification ?
It vras hplden, that he ought nbt.
And by Denifim J. — It has been faid ; that,
as the iffue joined upon the plea ofjuftification
Michaelmas Term 29 Geo. 2. 1755. ^^^
is (bund for the plaintiff, and the judge ha3
liot certified^ that the defendant had a proba*
ble caufe to plead the matter therein pleaded,
the defendant is entitled under the 4 ifm. c. 16.
to the coils of that plea ; But the words of
that fiatute are only, that coils ihall in fuch
cafes be given at the difcretion of the court ;
and it has been refolved at a meeting of all
the judges, that if there be a certificate upon
the 45 £^. the plaintiff (ball not have the
coils of any plea^ pleided with leave of the
court; althougl^ the iffue thereupon joined be
found for him, and the judge have not cer-
tified that the defendant Had a probable caufb
for pleading the matter therein pleadedt
Hilary
—— I 1^— — ^M^— ^M— ^—W M^— — ^— ^^i— i
Hilary Term,
29 G^o. a. i756«
Sir Dudley Ryder, Chief Juftkt.
Sir Thoinas Dcnifon,
Sir Michael Poller,
Sir John Eardly Wil
Ion, V
r. VJuftic'es.
STilmbt, 3
I-- III I'
Lee w/y^ WalHs.
A by-law. T N an aftion of trffpafs^ for taking and con-
reftnining J[ vcrting the plaintiff's goods, the defendant
the nvmober pleaded i that the inhabitants of the town of
om^f whom Godalming were incorporated by a charter from
an election is Queen Elizabeth^ and that a power was given
10 be made, by thecharterof making by- laws ; that by the
is not good, charter certain officers called wardens were to
be eledted out of the inhabitants at large ; that
a by law was made, whereby it is ordained,
that the wardens ftiall be elided out of the
court of alfiftants ; that the court of affif-
tants are eledted out of perfons who have
ferved certain offices, and not out of the
inhabitants at large; that a penalty of ten
pounds is inflifted by the by-law upon
every perfon elefted warden, who (hall
fefufe to execute the office -^ and a power is
given
Hilary Term 29 Geo. 2. 1756. 263
given of levying the penalty, and in cafe it be
not paid upon demand, by diftrefsand fale of
the goods diftrained ; that the plaintiff being
eledted warden, he refufed to take upon him-
felf the office ; that a demand was made of the
penalty, which the plaintiff refufed to pay 5
and that the goods, for the converting of
which the action is brought,, weire diftrained
and fold tolatisfy the penalty.
Upon a demurrer to this plea,, the queftidn
was. Whether the by-law be good ? .
It was holden that it is.not.
And by Ryder Ch. J.— ^A by-law to reftraia
the number of perfons out of whom an ofEcer
may be elefted, is not good* In the cafe qt
Rex v. Tucker^ Eq^. I5 (5. i. it appeared} that
by the charter a certain officer was to be el^^«
ed out of four perfona nominated by the bur**
ge0es at large; and that it was ordered by a
by-law, that the four nominees (hall be alder-
man, or that at lead one of them (hall be an
alderman. This by-law w^s.holden to be void;
and the judgment was affirmed in the hou(e of
Lords. In the cafe of Rex v. Phillips^ Trin. 2z ,
G. z. it was holden ; that a by-law to reflraijft
the number ofeledtors may be good; .in. as
much as, the inconveniencies, which frequent*
ly attend popular eleftions, may be thereby
prevented : But that a by-law ^ to reftraip the.
number of perfons, out ofwhom an eledtion is
to be made, is bad, becaufe t)ie conftitution is
t hereby . narrowed .
This by-law is bad for another reafon;
namely, that it gives a power of felling the
goods diftrained, and by fo doing, renders
the diftrefs irreplevi fable; whereas by the com-
mon law, every diftrefs is replevifable. By
the
%64. Hilary Term ap Geo. a. 1756.
the t ff^(^ M. €. 5* a power of felling the goods
diftrained for rent in arrear b given : But five
days are allowed by that fiatute for replevy-
ing the goods; whereas under this by-law^
the goods may be fold immediately after they
are diftrained^
ftctks verf. Mafon.
A new trial T TPON a rule to (hew caufe, why a new
grintedibc- |^ trial (hould not be had; Ryder Ch.].
fJJ^^JJ^ before whom the cHiife was tried, reported j
^uiified ^^^t ^^^^ ^^ eviderice on both fides • but
with Che ttr- that the evidence, for the party in whofe fa*
^^ vour the verdidt is found, Was fo very flighr^
that the jury ought not, in his opimon, to have
regarded it : And that the evidence for the
cftner party was very ftrong ; and he conclud-
ed with faying, that he was diflatisfied with
the verdift*
At a former day, when this rule came oti,
it was faid on (hewing caufe ; that if there be
evidence on both fides, a new trial ought not
to be granted^ and the cafe of Smith v. Ht^ns,
Mich. 14 Cr. 2. in this court was relied upon;
wherein a new trial was refiifed, althotigh Let
Ch. J. reported ; that the evidence for the
plaintiff, in whofe fitvour the verdidt was found,
was flight, aiiid^ that he had fummed up
ftrongly for the defendant : The opinion of
the court being, that as there was evidence on
both fides, a new trial ought not to be granted.
The matter was at that day ordered to Hand
over, for the chief juftice to look into his notes,
in order to make a fuller report.
After
Hilary Term 29 Geo. 2. 1756* 265
After the Chief Juftice had made the above
report, it was faid in fupport of the rule ;
that if the judge declare himfclf to be diffa*
tisfied with the verdi(?>, it is theconftant prac-
tice to grant a new trial ; and nothing was
faid by the council who had (hewn cauie at
the former day.
The rule was made abfolute.
Gardiner "verf. Atwater.
UPON a motion in arreft of judgment, ^^^•"«*o
. in an adion upon the cafe for words it^ ^°"^^"^^
t \ \ r 1 -by the court
appeared, that there were leveral count*? ^^ ^<^ x\tK\ 2s^
the declaration; that the words in one count generally uu-
were. Thou art a fbeep-ftealing rogue, and far- dtriiood,
mer Parker told me fo ; and that the words in
another count were, Thy character is good for
nothing ; it founds every ijohere, that thou art a
Jbeep'ftealer.
The rule was difcharged.
And by Denifon J. (Ryder Ch. J. being ab-
fent.) — Divers old cales have been cited, in
which it is laid down; that if words can be con-
Arued by the court in fuch fenfe as not to be
aftionable, they ought to befacoqftrued: but
it is at this day fettled, that words are to Jbe
conftrued by the court in that fenfe, where-
in they are generally underftood ; and there
can be no room for doubt, whether the
words in the prefent cafe do import a charge
of felony.
It has been faid ; that although the court
Ihall be of opinion, that the words, thou art
a Jbeepflealing rogue ^ are adlionable ; yet the
pfaintiflf ought not to have judgment; becaufe
Mm it
268 a»y Icrm 29 Geo. 2. 1756.
Wilfon verf. Wymonfold.
^uUD^L-An T JP^N a rule to fliew caufe. why a plea of
CoLinuMct " \^ ^^'^ Darrein Continuance fhould not be fet
fetaiide* alue for irregularity, it appeared; that the
plaintiff, wlio fued as a Ftmie doJe^ was mar*
ried, and that this was plea led in the plea:
but it likewife appeared; that the plaintiff
was married before the laft continuance day.
The^uie was made abfolute.
And by the Court — As the plaintiff was
married before the laft continuance day, the
defendant cannot plead this in a plea of Puis
Darrein Continuance.
Rex verf. the Inhabitants of Marwood^
A fcttVmcnt T N an order of feflions, it was ftated ; that
may be gain- X ^^^O Eloper, father of the Pauperis wife,
cd by being being poflfefled of a houfe in the parifh of
anfrSdif' Kenlejbury, for the remainder of a teVm of
forty Vay"m ninety- nme years, determinable upon the
a Icafehold C3th ot J* S. in confideration of natural love
houfe. and affeftion, granted it in the year 1741 to
his daughter f(T life, with remainder to her
daughtei*; that in the grant there was a refer-
va ion ci (»ne room for himfelf, and the lord's
rtnt, which was ten ftiillings a year, was to
be paid by the grantee ; that the Pauper and
his wife fopn after entered upon the houfe,
and trorr; time to time paid the lord's rent;
that they refided therein till the leafe was de-
termined by the death of T*. S. aiid that no
other confideraiion was mentioned in the leafe,
than the fum of twenty (hillings, and the an-
nual rcnt^ of ten ftiillings to be paid to the
lord. ' ' . :
The
Hilary Term 29 Geo. 2. 1756. 269
The queftion was, whether the pauper did
gain a fettlemeQt in the parifli oi KeriUJbury?
It was holden, that he did.
And by Ryder Ch. J. — Before the 9 G. 1. c.
7. a man might gain a fettlement, by refiding
forty days in a houfe pur^ hafed by himfelt,
how fmall loever the fum was fur which it was
purchafed. By that ftatute it is provided;
** That no perfon fhall be deemed to gain a
*' fettlement in any parifh, by virtue of any
** purchaie of an eftate or intereft in fuch
** parifli, whereof the confideration doth not
** amount to the fum of thirty pounds, bona
^' fde paid, for any longer time than fuch
** perfon rtiall inhabit in fuch eftate." If the
Pauper had paid any pecuniary confideration,
he would have been a purchafer of the houfe,
although the grant was to his wife: but as he
did not, he was not a purchafer within the
meaning of that ftatute; and confequently he
did gain a fettlement. Under the word pur-
chafe, in the large fenfe of that word, every
acquifition of an eftate by gift, marriage fet-
tlement or devife, or by any other way, ex-
cept it be by fome a<5l of law, is comprehend-
ed: but as the 9 G. !• does fay exprefs-
ly, that a fettlement ftiall not be gained
by purchafing an eftate, unlefs the confide-
ration-money be bona fide paid, that ftatute
can only extend to purchases for pecuniary
confiderations.
Atherley n)erj. Evans.
IN an aftion of Indebitatus Affum^Jtt^ the A fimple con-
plaintifF declared, as executor of ^(?i/:r traa debt is
Cofins, upon feveral promifes. c?bybciriL
lowed in a fet*
tied account.
The
270 ilary Term zg Geo. 2. 1756.
- I ,
■^ i— — — ^— — ^— ■ I I
The defendant pleaded ; that after the time
of making the promifes, the plaintiflTs teftE-
tor and the defendant accounted together;
that upon the fettling of the account, the
defendant was in arredr to the Plaintiff's
teftator in the fum of twelve pounds ; that the
defendant afterwards paid the faid twelve
pounds, to wit, ten pounds, part thereof, to
the plaintiff's teftator during his life, and the
remaining two pounds to the plaintiff after
his teftator*s death.
Upon a demurrer to this plea» it was
holden to be bad.
And by Ryder Ch. J.— It has been faid;
that as the payment of the twelve pounds,
which is pleaded fpecially, might have been
given in evidence upon the general iffue;
die plea, as to that part of it, does amount
to the general iffue, and confequently that it
is bad : but it is not univerfally true, that if
a matter, which might have been given in
evidence upon the general iffue, be fpecially
pleaded the plea is bad ; for infancy, or a re-
itatc, may be given in evidence upon the
general iffue, and yet either of thefe may be
pleaded fpecially.
We are of opinion, that this plea is bad;
becaufe the matter therein alledged, and re-
lied upon, in bar of the aftion, is not a dif-
charge of the original debt. If the defendant
had given a bond to the plaintiff's teftator, in
fatistadion of the original debt, this, although
it would not have been a payment, would
ha,ve been a difcharge of the original debt;
becaufe, as the original debt was upon fwn-
ple contraa, it would have been extinguiftied
by the bond, which is a fecurity of higher na-
twre;
Hilary Term 29 Geo. 2. 1756. 271
ture : but it was not extinguiftied by being
allowed in the fettled account. The cafe of
Milward v. Ingram^ a Mod. 44. Trin, 27 . c. 2.
has been cited, and relied upon, in which it
was holden ; that a fimple contrad debt is
cxtinguiQied by being allowed in a fettled ac-
count : but in a fubfequent cafe, May v» King^
12 Mod. 537. 7rin. 13 ^. 3. the contrary
was holden. In the latter cafe, the authority
of th« cafe of Milward v. Ingram was expref&ly
denied ; and its authority has been fince fre-
quently denied.
Eafter
27 :i
Eafter Term.
29 Geo- 2x 1756.
Sir Dudley Ryder, Chief Jujlice.
Sir Thomas Denifbn,
Sir Michael Fofter,
Sir John Eardley Wilmot,
f Jnftices.
Standen on the Demife of Wheatly verf
Hall.
Ifacaufebc T TPON a rule to ftiew caufe, why the
made a re- \^ defendant ihould not have the cofts of
manct at one two aflizes, it appeared ; that at the firft af-
*^^*/h^ fize, the caufe was made a Remanet by the
aflizc^follow orderof the judge ; and that at the next af-
thererdia. ^ze, there was a verdidl for the defendant.
The rule was made abfolute.
And by the court — It has been faid ; that
in the Court of Common Pleas, only the cofts
of the latter affize are in fuch cale allowed:
but it is the pradice of this court to allow the
colls of both aflizes.
Weftoii
Eafter Term tg Geo. z: 1756. 273
Wefton verf. Donelly.
UPON a rule to Ihew caufe, why the Iflcfsthan
plaintiff, who had obtained a verdift, forty (hillings
ihould not pay cqlls tq the defendant, it ap- ^ ^^^J^'^*
peared ; that at the tiine of commencing the Jn f^^^^s**
acflion, thp defendant w^s refiant in the bo-Uabktocofts.
rough of Soufhfwark; that the borpugh of
Soutbwark is within th? jurifdidion of the
Court of Requefts, erefted by the 22 G. 2.
^.47. that jthe plainti^ hafl ailedged in his
declaration, that the fum which is due to hio^
from the defendant was more than forty
(hillings; and that the yerdfd^ \iras for only
thirty Ihillings.
The queflion was, whether the plaintiff be
liable to cofts ?
It was holden that he is ; and, in order to
authorife the matter to tax cofts for the defen-
dant, a rule was made for entering thp foUowr
ing fuggeftion upon the plea roll ; namely,
that no more than thirty ft)illingi w^s reco-
vered ; and that at the timp of commencing
the aiSlion, the defendant was refiant in the
borough of ^uthwark, and was liable to be
fummoned before the Court of Requefts for
t}ie town and borough of Squtbwark in the
county of ^urrj^.
. And by R)[d^ Ch- J.r-It has been faid ;
that, the wqrds of the 22 G. 2. f 47. being,
'* that, if iq aqy avS^ion the dtbt to be recovered
*' by the plaintiff doth not amount to forty
" fhillings, thp pjaintiflf ftiall pay cofts to the
'* defendant;" tne plaintiff is not liable to
cofts ; for that, as he has ailedged in his de-
claratioDi that the ium due to him from the
N n d?Gprid^-
274 Eafter Term 29 Geo. 2. 1756.
defendant, was more than forty (hillings, the
debt to be recovered in the aftign did amount
to forty (hilliflgfri but jye are o^ opinion; that
as the plaintiff did not obtain a verdidl for
forty millings, he is liable to cpfls. In \hp
3 Ja. I. r. 15. by which a court was ereded
for the recovery of fmall debts within the
city of London f the words are, the debt to be
recovered: yet the conftrudion has always
been, that if the defendant be refiant within
the city of London^ the plaintiff*, in cafe be
bring an adlibn in one of the fuperior courts,
is liable to cpfts, unlefs he obtain a verdi^
for forty (hillings.
The Mafter and Wardens of the Society
of Innholders in London verf, GledhilL
A by-law, T N the declaration in an adlion of debt, for
compelling a j^ the penalty of five pounds inflifted by a
L';ui.er;;yM''aw it was alledged; that the fociety of
of a company, innholders was incorporated by a charter trom
muft fhew king CbarUs the fecond ; that by the charter
that the com- a power was given of making by-laws, and of
panyhavca infliding penalties for the breach thereof;
*vcry. ^j^^^ ^ by-law was made, by which it was
ordained, that every perfon, being a freeman
of the company, who (hall be elefted upon
the livery, (hall accept the livery and cloath-
ing, and upon fo doing pay a fine of ten
pounds ; or upon a refuial to accept the livery
and cloathing, (hall forfeit the fum of five
pounds to the mafter and wardens, to the ufe
of the mafter, wardens and fociety, the pe-
nalty to be fued for by the mafter > warden?^
and fociety, in any of the king's courts ; that
the defendant, being a freeman of the com-
pany, was eleded upon the liverjr ; that due
notice was given him of his being cfefted ;
that
Eafter Term 29 Geo. 2. 1756. 275
■ . -■ - . ^
that he refufed to accept the livery and cioath*
ing ; and that he has not paid the penahy of
five pounds.
Upon a general demurrer to this declarati-
od^ the quellion was» whether it be good ?
It was holden that it is not.
And by Ryder Ch. J. — A by-law of a cor-
poration^ whereby a penalty is inflidted upon
luch a member of the corporation » as does
iiot p^y obedience to the by-law, is good : bdlt
Sire are 6f opinion, that this declaration is not
good ; becaufe it is not thereiii alledged, that
the cofnpany of innholders has a livery. It
has beeti faid ; that in divers a^fts of parlia-
ment, the livery of many companies in Lon-
don is mentioned as a thing well known ; but
it is very certaiti, that fome companies in Lori'-
d$h have no livery ; and the court cannot in-
tend, th^rt the company of innholders is one
of the companies which has a livery.
It has been faid ; that the want of its being
alledged in the declaration, that the company
have a livery, is a matter of form, which can-
not be taken advantage of upon a general de-
murrer : but we are of opinion ; that this is
traverfable, and might h^ve been put in if-
fuc ; and confe(|uently, that it is a matter of
fubftance.
Pqfter J. concurred with Ryder Ch. J. and
Denifon J. in the above opinion ; and he added;
that the declaration is, in his opinion, bad
upon another account; namely, that it is there-
in alledged, that the defendant is a freeman of
a company, whereas it ought to have been al-
leged, that the Defendant is a freeman of the
city of London ; becaufe any perfon, who keeps
N n 2 2iu
276 Eaftcr Term 29 Geo. 2. 1756.
an inn within the diftance of three miles from
the city of London^ may, by the charter of thii
company, be a freeman of the company, al-
though be be not a freeman of the city of
London.
ff^ilmot J. concurred in opinion with the
other Juftices ; and likewifc with Fofier J. in
the objeAion made by him to the declaration.
Rex veff. Davis.
AcoDcaor y TpoN a rule to (hew caufe, why a cort-
thJ^rof M vidlion, add an order of feflions affirm-
a highway it ing it, (hould not be quafhed, it a{}peared;
a parifli offi- that J. S. had profecuted J. N. for fiealing 2L
««r. horfe in the parilh of Sl Leonarfs^ Shore*
ditch ; that J. N. was conyided ; that J. S.
obtained a certificate under the 10 &" 11 ff^*
5. r. 23. that the certificate was duly inroUedg
and afngned to the defendant ; that J. S. was
afterwards appointed a colledlor of the rates,
made purfuant to the 22 G. 2. c. 30. for the
better repairing of the high ways^o, the parifh
of St. Leonardos, Shoreditch ; mat up6n the re-
fufal oi y. S. to take upon nimfelf that- office,
he was, notwithftanding his produdion of the
certificate and affignment, convifted by a juf-
tice of the peace in the penalty often pounds*
inflided by the 22 G. 2. and that, upon an
appeal to the quarter feffions, the convidlion
was affiirmed.
The rule was made abfolute.
And by Ryder Cb. J.— By the 10 £5? 11 /^.
3. it is enaded, " that every perfon who fhall
** apprehend mdprofecuie any perfon guilty
^' of any of the felonies therein mentioned,
'* until he or (he (hall be convided, (hall have
" a ccr*
4€
Eafter Term 29 Geo. 2. 1756. 277
"■• •• — - — ■
a certificate, certifying within what parifh
the felony was committed ; that the certi-
ficate may be once afligned over, and no
more ; and that the original proprietor of
the certificate, or the afTignee of the fame,
by virtue thereof, Ihall be difcharged from
*• all and all manner of parifti and ward offices,
*• within the parifh or ward wherein the fc-
*' lony fhall be committed."
It has been faid ; that as the appointment
to this office is by the truftees of the turnpike,
it is not a parifh office : but the office is to be
executed in the parifh ; and confequently it is
a parifh office.
It has been faid ; that the office, it being
that of colledlor of rates at a turnpike, is a
Dew office, which has been created long fince
the lofefii^. 3. and confequently, that
it cannot be an office within the meaning of
that ftati|te : but the office is not to be confi-
dered as a new office, it being no more than
a new regulation in the ancient office of fur-
Yeyor of the highways.
The other juflices concurred in opinion
with the chief juflice ; and Denifon and Fojier
J. added ; that, if the office were a new office,
the defendant would, in their opinion, be ex-
empted from ferving it ; for that, as the cer-
tificate was intended to be a reward, for the
apprehending and profecuting of felons, the
ftatute ought to have a liberal conflruftion.
Rex
278 Eafter Term 29 Geo. 2. 1756.
Rex verf. Beaumont.
A court of X T PON a rule to fhcve caufe, why an in-
quaitcr fcf- \^ di^flmetit ffxould not be qiiafhed, if ap-
• "«\S*"*^^ peared; thdt the indfiAinent was for perjury;
rarilaictioii »,. rjj- tr ■ >
:Jjf p^ury. ^wd that It was found at a court of quarter
feflions.
The rule was made abfolute: but it was or-
dered to be inferted in the rule,, that the in-
didment was qualhed; beeapfe a court of
quarter feffions has not jcrrifdidion of the
offence of perjury.
Rex "verf, Severn and Arnold.
An appoint- T T PO N a rule to (hew caufe, Why an ap-j
mcntofovcr- ^J pointment of overfeerof thepooflhould
TO^forV not be quafbed, it appeared; (hat the defen-
prccinaia dants were appointed, by two juftietes of the
¥ouL peace, overfeer^ of xh€ poor wifhiD the pre-
cindt of the tower, dtberwift eaHed thd pa^
rifh of St. Pete/s ad Firicula\ within his ma*
jcfty's tower of 1j)ndon\ and that they were
appointed under the 43 Eli%. c. 2. and not
under 4b& IS ^ 14 C. 2. c \z.
The rule was made abfolute;
And by Denifon J —We are of opinion ;
and the late (F) chief juft ice did concur in this
opinion, that the appointment of the defen-
dants to be overfeers of the poor is void. It
does exprefsfy appear, to be an appointment
under the 43 Eliz- : but it is not a good ap-
pointment under that ftatute, or under the
13 £s? 14 C 2. The former of thefe ftatutcs
does only give a power of appointing overfeers
(F) The late Chief Juftice died upon the twenty-fifth
day of May ; this judgment was given upon the thirty-firft
day of that month.
of
Eafter Term ^9 Geo. 2. 1756. 279
of the poor in pari (hes; and this power is by
the latter ftatute only extended to townfhips
and vills : and we are of opinion ; that both
ihefe ftatutes, which have in other inftances
been conftrued ftrifflly, ought to be fo con-
ftrued in the prefeni cafe. In the cafe of
Rix V. Curie and others ^ Mich, zo G. z. it
was holdep ; that the very words fubjiantial
Houfeholders , which ?r.e the words of the 43
-P//Z, muft be ufed in an appointment of over-
ieers of the poor; and an appointment|
wherein the perfpns appointed were called
principa} inhabitants^ was quaftied: and the
fame ftridlnpfs in conftruing this ftatute has
been obferved \n divers other cafes*
It has been faid; that, as the place of
which the defendants were appointed over-
feers, is called the parifli of *S/. Peter^s ad Fin--
cula, within his majefty-s tower of London,
as well as precin^ of the tower, it is a parifh
by reputation, and the cafe of Hilton v. Pavole,
Cro. Car. 92. has been cited, in which it was
holden ; that a parifti is within the meaning
of the 43 Eli%. : but although a place may
be a parim by reputation, and although over-
feers of the poor may be appointed tor fuch
place; yet an appointment of overfeers for
fuch place will be bad, unlefs the place be
therein exprefsly called a parifli. In the pre-
fent cafe, the defcription of the place is, pre-
cin^ within the tower ; for the words, Parijb of
St. Peter^s ad Vincula, within his majefiy's tower
cf London t are under an other wife called ; and
the rule in fuch cafes is, that the name or de-
fcription which precedes ajn otberwife called,
is always to be confidered as the true name or
defcription, and not the name or defcription
which follows. In an anonymous cafe, 3
Bulfir.
28o Eafter T^rm 29 Geo. 2; 1756.
Buljir. 296. it is faid, that the whole court
was clearly of opinion ; that the true name of
a man is that which does precede an 4li^
DiHust and an indictment was in that cafe
quafhed, becaufe the additiot^ of th^ p^rfoo
indided followed the Alias Di£lus,
It has been faid ; that, ahhough the place,
of which the defendants were appointed over^
feers be not a parifli, the court may intend
that it is a townfhip or vill, within the mean-
ing of the 13 6? 14 C. 2. But, as it is not ex»
preffly called a townfhip or vill in the ap«
pointment, the court ought to intend that it is
a townihip or vill, in order to make an op-
pointment good which is not warranted by
that (latute.
Rex verf Alderton.
If the words T T PON a rule to (hew caufe, why judg-
in an advcr- \jl jn^^t Ihould not be arretted in an inform
notSo^us, i^ation for a libel, it appeared ; that an a4v«-
without the* tifement had been publilhed by the defendant,
help of an in- wherein, after reciting divers prior advertife-
nuendo, the ments, figned by the clerk of the peace for
advertifc- jj^^ county of Suffolk, relative to the diftemper
ment is not a 'i_ i. j ..t j • •
a libel. amongft the horned cattle, and mentioning
divers orders, made for colledling and diftri*
buting of money on account of that diftemper,
it was faid ; that by thofe orders the money
colleded had been improperly applied.
In the information, which was for this ad-
vertifement, it was charged to be a libel upon
the juftices of the peace for the county of
Suffolk ; and as often as any particular orde(
was mentioned in the information, there was
this innuendo, meaning ^/r order of the jjiftices of
the peace for the county of Suffolk,
The
Eafter Term 29 Geo. 2. 1756. 281
The rule was made abfolute.
And by Denijon J.— We are of opinion,
and the late chief juftice did concur in this
opinion, that the advertifement is not a libel
upon the juflices of the peace for the county
01 Suffolk. It does not appear, without the
help of the innuendo^ Sy that the orders, men-
tioned in the advertifement, were the orders
of the juflices of the peace for the county of
Suffolk; and if the advertifement be not in
itfelf alibel upon the juflices, it cannot be
made fo by the innuendoes. In the cafe of
Barbam v. Netherfall, . Teh. 21. which was
an adlion for words, it was alledged in the de^
claration ; that the defendant bad fpoken the
following words: J. Barhatn batb burnt my
barn, innuendo, my barn full of corn. Judg-
ment was in this cafe arretted ; and by the
court, the words, batb burnt my barn, are no
ilander, this being only a trefpafs, and the
innuendo (hall not help the matter. It is the
nature of an innuendo to explain doubtful
words, where there is matter iufficient in the
declaration to maintain the adion ; but no
words, produced by the innuendo, ftiall make
the adion maintainable. In the cafe of Rex v.
Creepe, Salk. 513. the charge in an indiftment
for perjury was; that the defendant had
fworn, that J. S. was upon a certain day at
Newnbam, innuendo, at Newnbam in Devon/hire ;
whereas in truth J. 6. was not at Newnbam
aforefaid upon that day* Judgment was in this
caf?arrcftcd ; and by th^ court, Newnbam may
as well n\ean Newnbam in any other county,
as Newnbam in the county of Devon. An innw
endo may explain and 4ppiy preceding words :
but it cannot add to, enlarge, or change the
fenfe of preceding words.
60 ii
282 Eafter Term 29 Geo. z. 1756.
It has been (aid ; that it may, after a ver-
dict, be intended, that the orders tnentiomed
in the advertiferoent were proved, at the
trial, to be the ordere of the jiTftices of the
beace for the county of Suffolk : but as this is
not atledged, the court cannot intend that it
Vas 'proved ; becaufe thci'e was lio neceftjty
^\ proving it. In the cafe of Buxenden v.
Sbarp^ Salk' 662. which w^ an adion lipod
^he cafe for keeping a bull ^ccuftomed to run
hiad, It ^as i^ot altedged in the decUratioq,
ttiat the defendant knew the bull was accut^
tdwed to run t!nad. It tiras holdeh, that tbi
3etcd of ^fled'cing this is not cured by a vei;-
3i A ; ^fii by the cdi/rt, as it was riot taecef-
fary f6r the plaintiff to prove, at the trial,
that the defendant knetr tne tull was accuf-
fcmed to run 'mad, tt cannot be intended, that
this #as proved.
Rex vepf. The Jeiftk(fes tof ttifc P8iio4 ^
the CcWitfty of Weftriioreland.
Amandamui f' TpON a fule to feetir c«ife, P^lfy a^Mdk^
Ihip^'ccfo^^ tJ ^«wj fliotfld not be awarded, for tlft
hearing an hearing of an appeal, it af^peared; 'Aft ¥hefc
appeal, tvas an appeal from an order tS ^o. jdkidii
to a garter feffions of tWe counfy tff tf^^jUMr^
land', that at thte Ijuarter feffiohs the 'ijp-
^al was Adjourned to iHfe tittci qnartdr feW-
6ns, and an order w^ tiii^e, th£Lt ^fhe ifiSfflfr
fliould, in^he mean time, be refeiwd te'^tife
of the Judges of aflfee ; th^ nothihg Hvtfe'ddii6
in the mat idr py the J udge 6f tfflfee, t6 ^Korh
h was rrfcrred ; aad that ^t (he ^«ftgr fef-
fions, to which the «*ppe^l Wis adfjourrtdd, tHte
cotirt refufcdto h^r ^(he appeal. MttdtHd'hdt
adjourn it to any Other '^u^rfer feflidns.
A peretoptdry 3feif»i/^/mWi wSis.aWafileci'; "by
which the juftices of thfe >ea^, YOr'tlfc'ebunty
of
Eafter Term 29 Geo. 2. 1756. 283
of fyefimoreland^ were commanded to hear the
appeal at the next quarter feffions.
And by the coqrt— It has been faid; that
as the appeal was not adjourned from the laft
fo the next quarter feffions, it is now at an
pndi but it will he inpumbent upon the jus-
tices, who (hall be at the next quarter feffions,
to conlider well, whether the negled of the
jail quarter feffion to adjourn the appeal, will
be an excufe for their not obeying the Manda*
plus of this court.
Rex wrf the Inhabitants of Kingfwood.
IN an order of feffions it was ftated ; that A pcrfon U
Abraham Turner, the father of the Pauper, "°^ ^^^ "=:_
whofe fettlement was in the pariOi oi Kingf^"^^"^^^^^^
wood, together with his wife Anne, refided chargeable to
many years in the parifh of fVickwar, under the parifti, in
a certificate from the officers of the parifti of ^li>c^ ^^ «-
Kingfwood, addreffed to the officers of the pa- ^^cd under a
riftiof ^/r*wtfr; that, during their refidence^^^^ ^'^'
under the certificate, the Pauper was born ;
that the Pauper lived with her father and mo-
ther, in the parifti of ^ickwar, till the death
of her father, and afterward lived with her
mother, in that parifti, without gaining any
fettlement; that about nine years ago, the
Pauper, being afflifted with the fmall pox,
was removed into a houfe, provided by the
parifti officers of IVickwar, for the reception
of perfons. Paupers of Wickwar, afflidled
with the fmall pox ; that ftie was provided
for, in common with other Paupers ill of the
fame difiemper in that houfe, until ftie was
recovered, by J, S. an inhabitant of ff^ickwar,
but not a parifti officer; that J^. S. declared
afterwards, that he was paid the expence he
had been at on account of the Pauper, but did
not fay by whom; that> during all the time .
O o 2 the
284 Eafter Term 29 Geo. 2. 1756.
the Pauper was in that houfe, her mother
renttd a houfe in the parilh of (Vickivar^ in
which the Pauper might have lived, if fhe had
not been removed as aforefaid, in order to
prevent the fpreading of the fmall pox ; that
the Pauper^ fince her recovery from the fmall
pox, has lived with her mother in the parifh
of IVick^war^ and fupported herfclf by her
own labour; that the Pauper was lately re-
moved, by an order of two jufticcs, to the
parilh of Kingpwood; and that the order was
affirmed upon an appeal to the quarter fefli-
ons.
The queftion was, Whether the Pauper was
liable to be removed to the parifli, of Kingf^
'wood?
It was holden, that (he was not.
And by the court — The Pauper^ at the time
of the removal, refided in the parilh ot If^ck*
war under a certificate; and confequently,
(he was not liable to be removed to the parilh
of Kir^wood, unlefs (he did become charge-
able to the parilh of fPickwar. If it had ap-
peared; that the expence, incurred upon the
Pauper's account, when (he had the fmall pox,
was defrayed by the parilh of ff^ickwar, it
would have been a queftion ; whether that
was a becoming chargeable, for which the
Pauper and her mother were liable to be re-
moved to the parilh of King/wood? There
would likewife, in that cafe, have been ano-
ther queftion ; namely, Whether the Pauper^
who had, during the nine years preceding the
removal, fuppcrted herfclf, was liable to be
removed to the parilh of King/wood^ on the
account of her having been chargeable fo long
before ? But as it docs not appear, that J. S.
was reimburfed the expence he was at on ac-
count of the Pauper by the parilh oifVick'mar,
we
Eaftcr Term 29 Geo. 2. 1756. 285
we are of opinion ; that, at the time fhe was
removed, (he was not liable to be removed to
the pari(h oiKingfwooii
Cope verf Marfhall.
UPON a rule to (hew caufe, why thc^°*™?"^-
plaintifFlhould not have leave to amend ^^^^^ ^
his replication, it appeared; that iflue was caufe was
joined upon the replication; that the recoiidmadear/-
was entered at an affize; and that it was made«««^.
a remamt for defcA of jurors.
' The rule was made abfolute.
And by Denifon J. — In the cafe of Dryden v.
Langley^ Trin. 24 &. 2. in the court of com-
mon pleas, leave was given to amend after
ifTue nad been fome time joined ; and it feems
to be reafonable, that, if the juftice of the
cafe require it, leave (hould be given to amend,
after a caufe has been entered at^n ailize and
made a remanet.
Rex wrf. The Inhabitants of Bradenham*
IN an order of fcffions, it was ftated; that An order of
y. S. and his wife and children were re- ^'^^°?*^^
moved, in December 1754, by an order ofbc'amMdcd!
two juftices, from the parifti of Thame to the
parith of Bradenham, and that this order, upon
an appeal to the quarter feflions, was re-
yerfed ; that foon after J. S, ran away from
his family ; that thereupon his wife and chil-
dren were removed by another order of two
}uilices from the parifh of Thame to the parifh
of Bradenham, and that this order, upon an
appeal to the quarter feflions, was affirmed.
After
^86 Eaftcr Term a^ Geo. z. 1756*
After a rule had Ipeen obtained, to (ko^
caufe why the two. orders of the juftices, and
the fecond order of feflfiona fhould not be af-
firmed, another rule was obtained, to (hew
caufe why the &x^ Wfde^ of fei&pn^ (hould not
be amended.
The lattev rule was obtained upon ati ^ffi-t
davit ; wherein it was alledged, that the firft
order of the juflices was reverfed by the quar^'
tor feffions ; becaufe it was not therein flated,
that y. S. and his wife and children, were
likely to become chargeable to the parifh of
name; and that the clerK of the pe^c? bad,
by miftake, entered a general order of rcverfal.
This rule, althpugh no a^^avit wjid iMd
upon Qiewing caufe f hereto, whs dif^harg^.
And by Dinif(m J.-^Tb« coqrt ^^nnot make
this rule abfolute, wiiboi)t giving or^it ta
an affidavit which is Qonxt^\€\ovy to a record;
and it would be of the mod dangerous con&-r
quence, as well as contrary to an eftablilhed
rule of law, to give credit to fu€h gfij^^vlt.
If the clerk of the peace did make a miftake
in entering the order of reverfal, it is a hard-
(hip upon the parilh of Thame: but the courf
ought never to depart from a general rule qf
the law, for the fake of relieving from a par*
ticular hardftip.
At a fuhfequent day, the former rul? was
ipade abfolute*
And by Denifon J.-r-As the firft order of re-
ipov^l was quafbed upon the merits, the fecond
order of removal ought not to have been
made* It has been laid; that J. S. mif^
have
|)aftcr Term 29 Geo 2. *^s6. 287
hsLVt gained a fetttement tn the pati(h erf Bra-
ihnbarki, after the Tiiaking of the firft order of
removal, or that ttfe^)«rt&of Bradenhammi^K
be his wife's own fettlement before marriage :
but if ei<hlbr of tfefefe thkigs ^ei^ ib, rt ought
to have been fluted, in the ;fecond order of re^
iBoval, or ifl the Second Harder ^f feflions. in
the caie of Alderfon v. Felixtowci Vm. Remov.
46fj. it was holden, in a '<}afe Hkt the |>refent ;
that it -eiftindt be intended, that a fettlement
was 'gaitiR&d afeer %he mafkisg a( the ^rd order
of removal.
And by Fofter J. — It appears, from a ma-
nufcript note, in my pofleffion, of the cafe of
Honiton v. ^t. Mary-Axe^ Mich. 9 Ann. to have
been holden in that cafe ; that if an order of
removal be qua(hed upon the merits, it is con-
clufive upon the parifti removing, as to the pa-
rifh to which the removal was ; and that if an
order of removal be affirmed upon the merits,
it is conclufive upon the parilh to which the
removal was, not only as to the parifli remov-
ing, but as to all other pariOies.
Rex verf, the Inhabitants of St. Peter's
in Nottingham.
IN an order of feffions, it was ftated ; that An appren-
during the refidence of J. S. in the parilh j|^^^® ^^^'"^
of St. Peter's in Nottingham, under a certificate ^'^y'L^n a
from the parifh of Beejion, addreflcd to the pa- fettlement in
rilh of 5"/. Peter's, the Pauper was bound to him any parifh,
as an apprentice ; that after the Pauper had except that to
ferved lome time in the parilh of 6"/. iV/^r'j,^^'?^^^^.
y. S. removed to the parifli oiSt. Mary ; and SSd!"
that the Pauper went with jf. S. and ferved him
jn that parilh about a year*
The
288 Eafter Term 29 Geo. 2« 1756.
The queftion intended to have been made
was, whether the Pauper did gain a fettlement
in the parifli of St. Mary^s f
But the cafe of Rix v. High and L&w Bijb&p-
Jide^ 7rin. 28 & 29 G. z. being cited, where-
in it was holden ; that an apprentice to a cer-
tificate-man may gain a fettlement in any pa-
rifli, except that to which the certificate is ad-
dreflfed, it was admitted ; that the Pauper did
gain a fetdement in the pariihof 4^/. Marfs.
Trinity
289
Trinity: Term,
^9 & 30 Geo. % 1756.
Sir Thomas Denifon,
Sir Michael Fofter,
iSir John Eardley Wilmot
MEMORANDUM. There was ia
this term no chitf juftice. Sir Dudley ^
Hyder, the late chief juftice, died during the
iaft term ; and lord Mansfield, who fucceeded
as chief juftice, was not appointed until the
pext tern?.
Bufh verf Railing.
UPON a rule to fliew caufe> why a new The gmngof
trial fhould not be had in an adtion upon money to for.
the 2G. 2. c. 24. it appeared; that the ac- l>«ar to vote,
lion was brought for the'pepalty given by the "j*^.^^^"^
feventh claufe of that ftatute, whereby it is meanlnff of
enadled, ** That if any perfoh, by himfelf or the i G. 2,
•* any per foti employed by him, (hall by any c 24.
'* gift or reward, or by any promife, agree-
** ment or fecurity, for any gift pr reward,
** corrupt or procure any pierfon to forbear
^* to give his vote in any eledion of a member
!' of parliament^ fuch perfon Ihali forfeit the
P p 'J fum
290 Trinity Term 29 & 30 Geo. 2. 1756.
" fum of five hundred pounds:*' that it was
alledged in the declaration, that the defendant,
whilft Ralph Tbrali, Efq; was a candidate for
being a member of parliament for the borough
of Abingdon^ did corrupt John Harvey to for-
bear to give his vote for the faid Thrale^ by
giving the faid Harvey the fum of twenty
guineas; that at the trial of the cau(e, it was
ruled by Fojier J. that Harvey was a compe-
tent wimefs ; that the evidence of Harvey was,
that the defendant did give him the Uim of
twenty guineas, to forbear to vote for ThraUt
but that Harvey did, even at the time of tak*
ing the twenty guineas, intend to vote for
Thrale, and did afterwards vote for him ; and
that there was a verdidl for the plaintifK
The rule was difcharged.
And by Ventfon J.— We are of opinion,
and the late chief jufiice did concur in this
opinion; that a new trial ought not to be
granted. Two obje(5Vions have been made to
the competency of Harvey to be a witnefs;
Xiamely, that he was a Particeps Criminis^ and
that the tendency of his evidence was to dif-
charge himfelf from penalties and difabilities.
It would, perhaps, be a full anfwer to thefe
obje(f\ions to fay, that a Partkeps Criminis,
although the tepd^ncy of his evidence be to
obtain a pardon, pr pven a reward for himfelfr
is, in divers qafes a competent witnefs : but
another anfwer, deducible from a claufe of
the flatute upon which the prefcnt adion is
brought, may be given. By par. 8. of that
ftatute it is enacfled, f^ That if any perfon
** offending againH this aA (hall, within twelve
** months after the eledtipn of a member of
^' parliament, difcover any other pcrfop
** oSeoding againft this ^&| fo that fucn per*
Trinity Term 29 & 30 Geo. 2. 1756. 291
•* fon fo difcovered be thereupon convided,
** fuch perfon fo difcovering, and not having
•* been before convifted of any offence againft
•• this ad, (hall be indemnified and difch^ged
** from all penalties and difabilities, which
" he (hall then have incured by an offence
** againft this aft/' This feems to be a legifla-
tive declaration, that one perfon, offending
againft this adl, may be a witnefs againft ano-
ther offending againft it; for it is not proba-
ble, that the legiflature iTiould intend to dif-
charge one offender againft this ad from all
penalties and difabilities, upon difcovering
another offender againft it, in fuch a manner
that the latter be convided, without intending
at the fame time, that the former (hould be ^
witnefs againft the latter.
In the cafe of Phillips v. Fowler, it was
ruled at Ni^ Prius, by Eyre C. J. of the Court
of Common Pleas, that Hoare^ to whom
money had been given to forbear to vote for a
candidate, was a competent witnefs againft
the giver of the money, in an adion for the
penalty given by the 2 G. 2. c. 24. and it was
faid by theCh. J. that unlefs the evidence of
the taker of the money, notwithftanding he is
a Particeps Criminis^ be in fuch cafe admitted,
the ftatute will be of very little avail. A new
trial was indeed granted in that cafe: but, as it
appears from i Barn. 326. that the new trial
was granted upon account of the jurors hav-
ing determined, as to the finding of their ver-
did, by cafting lots, it may fairly be inferred;
that the opinion of the Ch. J. as to the com-
petency of Hoare to be a witnefs, was ac-
quiefced under.
It has been faid ; that as Harvey, even at
the time of taking the money, intended to
P p 55 vote
2Q2 Trinity Term 29 & jo Geo. 2. 1756.
^ • •• - -
vote for Tbrahf there was no affent of his
mind to the propofal of forbearing, to vote,
and confequently, that the defendant did not
corrupt him to forbear to vote: but we are
of opinion ; that, whatever the intention of
the taker of the money is, at the time of tak-
ing it, the offence of corrupting is complete,
as to the giver of the money, by giving it to
forbear to vote for a candidate ; and that it
would be a very narrow conftrudion of a fta-
tute, which was intended to prevent every
mode and fpecies of corruption, to hold ; that,
becaufe the mind of Harvey did liot affent ta
the propofal of forbearing to vote, the defen-
dant, who, by giving the money did all that
was in his power to corrupt Harvey, was not
guilty of corrupting him.
It has been faid ; tl^t although the words,
vnJawfully procure orfuborn^ in tne 5 Eliz. c. 9^
are in the disjundive, the conftrudion has
been, that the offence of fubornation of per-
jury cannot be, unlefs there has been a per-
jury; and it is inferred; that although the
words, corrupt or procure, in the 2 G. 2. c. 24.
are in the disjundive, the conftrudion ought
to be, that the offence of corrupting to forbear
to vote cannot be, unlefs there has been a for-
bearing to vote : but there is a wide difFerenoe
betwixt the two cafes. The word fuborn, in
the former ftaiute, which is a technical word,
means the fame as unlawfully procure; and
confequently, unlefs there be an unlawful
procuring, there cannot be a fubornitig: but
the meaning of the word corrupt^ in the latter
(latute, is different from that of the word pro'
cure^ and confequently, there may be a cor-
rupting, although there be not a procuring.
It does moreover fcem to have been the inten-
tion oi the 2 G. 2* c. 24. to' make the giving
of
Trinity Term 29 & .30 Geo 2. 1756. 293.
of money to forbear to vote an offence, al-
though there be not a forbearing to vote ; for
the taker of money to forbear to vote is liable
to all the penalties and difabilities of that fta-
tute, although he do not forbear to vote ; and
it is not TO be conceived, that the legiflaturc
did mean, to inflid a more fevere penalty
upon the perfon who takes money to forbear
to vote, tnan upon the givet of the money.
There is another reafon why the conftruc-
tion of z G z. c. 24. ought to be, that the
offence of corrupting to forbear to vote may
be, although there is not a forbearing to vote ;
namely, that if the conftrudlion mould be
otherwife, an adion can never be maintained
upon that ftatute againft the giver of money
to forbear to vote, if the taker of the money
die before the election.
Pearce wTf. Davy.
UPON a rule to (hew caufe, why a dila- A dilatory
tory plea Ihould not be fet afide, it ap- p'« ^^^ f^^^f
peared; that the affidavit was not pofitive as^^*"j^g'^^
to the truth of the fa«ft pleaded ; but there ^ affidavit,
was fomething alledged in the affidavit, from
whence it might fairly be inferred, that the
fadl pleaded is true.
The rule was made abfolute. Denifon ].
and IVilmot J. being of opinion, that the affi-
davit is not lufficient.
And by Denifon]. — It has been faid; that
it is fufficient under the 4 Ann c. 16. if any
matter be (hewn to the court by affidavit, to
induce them to believe, that the faifl of the
plea is true : but the conflruftion has alway?
been ; that the affidavit mufl be pofitive as to
every matter of faft ; for that the words pro-
bable matter, in that ftatute, do only extend
tQ
194- Trinity Term 29 & 30 Geo. 2. 1756.
to a matter of record » or to fome other colla-
teral matter, as to the truth of which there
cannot be a pofitive affidavit.
Fojler J. inclined to be of opinion, that the
affidavit is fufficient ; in as much as, it may
be fairly concluded from what is therein al'^
ledged, that the fafl pleaded is true.
Griffith wrf. Hollier.
An amend- TTPON a rule to (hew caufe, why the
; aOowcd vJ declaration Hiould not be amended, by
alter two firiking out the word tVorceftirflsire^ and in-
*T°h h^ fcrting the word Oxfordjbire^ it appeared ;
rJ!Lw» ^^^^ ^^^ aflion had been commenced more
doogedi than two terms; and that the confequence of
the amendment would be changing the Venue.
The rule was made abfolute*
And by Denifon J.— As the amendment,
intended to be made, is an amendment at the
common law, for the making of which no
time is limited, the court may give leave to
make it, notwithftanding the adion has been
commenced more than two terms, and the
confequence of the amendment will be the
changing of the Venue.
It has been faid ; that as it does appear,
from the affidavit, uf>on which. the rule to
fhew caufe was made, when the bill was
filed, it may have been filed merely to have
fomething to amend by : but the court will
not, in a cafe like the prefent, inquire into
the time of filing the bill ; it being fufficient
for the purpofc of amending, that a bill is
filed.
It
Trinity Term 29 & 30 Geo. 2. 17 56, 2§$
It has been faid ; that if the amendment in*
tended (hould be allowed in the prefent adion»
^^'hich is an adlion upon a ftatute againft a car-
rier, the pendency of the prefent adion, which
may have been brought coUufively by a friend
to the defendant, may be pleaded in bar to a
fubfequent adion brought bona fide in the
county of Oxford ; the confequence of which
will be an elufion ot the ftatute. If fuch col*
luHon did appear, the court would adually
refufe to give leave to amend : but the court
will never prefume that an adion is collufive^
unlefs it appear to be fo.
Doe, on the Demife of Brownfmith,
verf. Denn/.
IN a cafe referved, in an adlion of ejeftment, A dmrctSs.
it was dated; that, by a marriage fettle- ^^*^"PP®^'
ment, an eftate was conveyed to truftees, to^^j^^^^'j^
the ufe oi Henry Tompfon^ the hufband, for^oid.
life ; then to the ufe of Mary, the wife, if (he
furvived her hufband, for life ; then to the
ufe of fuch child or children as (hall be begot-
ten by the faid Henry upon the body of the
faid Mary, and for luch eftate and eftates^ and
fubjed to fuch powers, conditions, provifions
and limitations, as the faid Mary, notwith-
ftanding her coverture, (hall bv writing or
will appoint ; and in default of luch appoint-
ment, to the ufe ot all fuch children of the
faid Henry and Mary in fee, equally to be di-
vided amongft theni, as tenants in common ;
and in default of fuch iifue, then to the ufe
of fuch perfpn as the faid Mary (hall by will
appoint ; and in default of fuch appointment,
then to the heirs of the faid Mary for ever ;
that Henry and Mary had iifue one fon, named
Hgnry ; that Henry ^ the father^ 4icd ; that
Mary
£96 Trinity rcrm 29 & 30 Geo. 2. 1755.
Maty died afterwards, leaving the fon undef
the agCL of twenty-one years ; that during her
widowhood (he made a will, wherein (he de-
clared, that by virtue of certain powers givea
her by the marriage fettlement, and of all
other powers in her vefted, (he devifed the cf-
tate to her fon in fee, and, in cafe he (hould
die under the age of twenty-one years, (he de-
viled the eftate to the ^ther of the defendant,
in fee ; that the fon afterwards died, under the
age of twenty-one years ; and that the leflbrof
tfie plaint ifF is heir at law to Henry the father,
and to Henry the fon.
The que(Hot^ was, whether the leflbr of the
plaintiff ought to riecover ?
It wa9 holden, that he ought.
And by Denifon J.— It was clearly the in-
tention of the parties to the marriage- fetilc-
ment, that tiSe iffue of Henry and Mary^ if
there were any iffue, (hould take an eftate ia
fee. The power given to Mary^ of devifing
it to a ftranger, was only given in cafe of a fai-
lure of fuch iffue. If Mary had Turvived her
fon, t!ie devife to the father of the defendant
would have been gopd ; becaufe there would
in that cafe, agreeably to what is laid down ini
the cafe of t^olt v. BurUigb^ Free, in Cbanc.
294. have been a failiire of iffue within the
meaning of the marriage-fettlement: but as (he
did not furvive her fon, that devife is void.
Upon the whole, we are of opinion, and the
late Chief Juftice did concur in this opinion;
that Henry took an eftate iii fee under the de-
vife to him; or an eftate in fee under the mar-r
riage-fettlement ; and that in either cafe, the
leflor of the plaintiff ought to recover.
Tqoker
Trinity Term 29 & 30 Geo. 2. 1756. 297
Tooker verf. the Duke of Beaufort.
IN an adion of Trefpafs^ the matter in iffue An exempli-
was, whether certain lands, called IVood- fication of a
crofts, were parcel of the manor of Hinlon ^^^^^^ ?;^^
ry-' , o court of Ex-
Daubney ? chequer, un-
At the trial of the caufe, an cxemplifica- ^^J ^^^ ^^
tion, under the feal of the Court of Exchequer, f^^^^^^^'
of a commiflion, and of the return thereto, "Ykicncc,
were given in evidence by the plaintiff. The
commiflion, which iflued Pafcb. 33 Eliz. fome
months after a grant by queen Elizabeth of
the manor of Hinton Daubney, was to enquire,
whether the prior of St^ Swithin^s in fVinchef-
ier, was heretofore feifed, in right of his pri-
ory, of certain lands, called fVoodcroftSy as
parcel of the manor of Hinton Daubney ; and
whether the crown had, fmce the dilfolution
of the priory, been feifed thereof, as parcel
of the laid manor ? The return to the com-
miflion was, that the prior was heretofore
feifed of thefe lands in right of his priory,
as parcel of the manor ot Hinton Daubney ; '
and that, from the time of the diflblution of
the priory to the time of the grant, the crown
was feifed thereof, as parcel of the faid
manor.
Upon a rule to Ihcw caufe, why a new trial
(hould not be had, Parker Ch. J. before whom
the caufe was tried, reported, that the ver-
did, which was for the plaintiff, was in a
great meafure founded upon the evidence of
the exemplification of the commiflfion, and of
the return thereto; and he added; that, if
the court (hall be of opinion, that the exem-
plification was not admiflfible evidence ; there
.ought, in his opinion, to be a new trial.
The rule was difcharged.
Q^q And
298 Trinity Term ag & 30 Geo. z* 1756.
And by Denifon J.— It has been faid ; th^t
the exemplification Mras not admiffible evi-
dence; becaufe it was not under the great
feal : but we are of opinion ; that an exem-
plification of a record of the court of Excbi-
quer^ under the feal of that courts is admif-
hbie evidence.
It has been laid ; that, as the crown was
not in poileffion of the manor of Hint on Daub-
ney at the time it iflued, the commiflion was
illegal ; and confequently, that no proceeding
under it is admifnble evidence. In fupporc
of this objedioui it has beenfatd; that ante-
cedently to the 22 Ch. 2. c. 6. by which fta-
tute that right is given, no fubjed had a right
to fuch a commiflion. Our opinion as to this
is, that, as there might have been a doubt,
whether the queen was, at the time of the
grant, in pofiefTion of the lands called Wood-
crofts^ or bad at that time a right thereto; and
confequently, whether thefe lands did pafs by
that grant, the commifliion for enquiring into
tliat matter might be legal ; and, if any cafe
can be fuppofed, in which it might be legal,
the court will, at this diftance of time, ftp-
pofe that cafe ; for the fake of admitting the
proceedings under the commiflion to be givea
in evidence.
It has been faid ; that the exemplification
ought not to have been admitted in evidence
againft the prefent defendant : becaufe, as the
commiflion was a commiflfion informing, and
not a comraiflidn entitling, the perfon, from
whom he derives a title to the lands called
tVoodcroftSt might be ignorant of the execu-
tion of the commiflion, or might not have an
opportunity of being heard ; and confequent-
ly, that the commiflion, and the return thereto,
are to be confidered as res inter alios a£la^
Our
Trinity Term 29 & 30 Geo. z. 1756. 299
.IK I J ■! ■ J
Our opinion as to thi« is ; that the commif-
fion was general againil all perfons ; that the
conmiiffioners were boand to receive any evi-
dence offered, to (hew that the lands called
ff^oodcrcfts were not parcel of the maoor of
Hinton Daubney ; and tiaat, if they had refufed
to receive any fuch evidence, the return
might, and undoubtedly would have been
quaflied. As it does moreover appear ; that
the commiffion was executed, and in a mod
public manner, within four miles of the ma^
nor of Charlton^ the then owner of that manor,
as parcel of which the lands called IVoodcrofts
are now claimed, could not be ignorant of its
execution ; and if he did know thereof, he,
as has been already obferved, had an oppor-p
tunity of (hewing, that the lands called IVooi"
i:rcfts were ppt parcel of the manor of Hinton
Oaubney. -^^^^^^
Whitmore verf. Rooke,\^^^
IN an adion of debt, by the a(lignee of a The ifluing
bail bond, the plaintiff alledged; that a />r^- ©fa writ is
€ept, called a bill of Middle/ex, was fqed out^^*^'^^^.^°[^^^
of this court againft the defendant in the ori- ^^J^^* ^^.^^
ginal aftion, which it if.
fued*
The defendant pleaded ; that no fuch pre-
cipt was fued out.
The plaintiff replied; that (lach precept was
fued out, as appears by the record of this
court, and concluded with praying that the
record may be infpefted.
Upon a demurrer to this replication, the
queftion was, whether the conclufion be
1?
It was holden, that it is.
Q^q 2; And
joo Trinity Term 29 fie 30 Geo. 2. 1756.
And by Denifon J.^— The ifluing of a writ
from another court, a3 of an original from the
Court of Chancery, is never a matter of re-
cord in this court, until the return thereto is
filed : but the iffuing of a writ from this court,
although no return thereto be filed, is always
a matter of record in this court ; becaufe there
muft always appear upon the roll an award of
the writ.
It has been faid ; that the iffuing of a bill
of Middle/ex is not pleadable, as a matter of
record in this court : but we are of opinion
that it is. If the writ pleaded in one court
was iffued from another, as if an original from
the Court of Chancery be pleaded in this
court, the iffuing of the writ cannot be plead-
ed, as a matter ot record in this court, unlefs
the return thereto be filed ; for until the re-
turn thereto is filed, the writ does not appear
upon the rolls of this court : but if the writ
pleaded was iffued from the court wherein it
is pleaded, as the bill of Middlefeo^ was in the
prefent cafe from this court, the iffuing of the
writ is pleadable, as a matter of record in this
court, although no return thereto be filed;
becaufe the award of the writ muft always ap-
pear upon the rolls of this court.
In the cafe of Fijber v. SonurvilJe, 7r«r.
8 G. 2. in this court, the defendant pleaded
the ftatute of limitations; the plaintifF replied
a hiU of Middleffx, with divers continuatjces ;
the defendant rejoined, that there was not
fuch a bill with nich continuances upon the
record; the plaintiff furrejoined, that there
was fuch a bill with fuch continuances, and
concluded with praying, that the record might
be infpecfled. The conclufion wa& holden to
be good; and by the court, it will appear,
upon
Trinity Term 29 & 30 Geo. 2. 1756. 301
upon infpeding the rolls of this court, whe-
ther there be fuch a bill of Middle/ex with fuch
continuances.
It has been faid ; that in the cafe of (G)
Efplin V. Smollety Eajt. 28 G, ^. in this court,
wherein the fuing out of a writ oi Fieri Facias
was put in iffue by the replication, it was
holden ; that fuch a replication ought to con-
clude to the country : but that cafe is of no
authority in the prefent cafe. In that cafe,
the levying of money under the writ of Fieri ^ t-^*
Facias, which is a matter of faft, was put in
iffue by the replication, as well as the fuing
out of the writ; and confequently, the deter-
mination in that cafe was conformable to what
is laid down in the cafe of Peter v. Stafford,
Hob. 244. namely, that if the matter of re-
cord, which is put in iffue, be mixed with
matter of fadl, the trial ought to be by a jury :
but in the prefent cafe, wherein nothing is in
iffue but the fuing out of the bill of Middlejex,
^he conclufion to the record is proper.
Rex verf, the Inhabitants of EaftXidford.
UPON a writ of £rror> brought upon a it Is not nc
judgment in an indidment, it appeared ;ccffary to fet
that the indi<ftment w^s found at a court of o"^^^^^<="g^J^
quarter feffions ; that the charge therein was, ^^ ^7^^^** ?*
L • .. r ^u Tr- » i_- L • anulance, m
that a certain part of the Kmgs highway m ^^ indiamcnt
the parilh oiEaft Lidford, being betwixt a cer- for the nu-
tain place called the Four-footed Crofs, and a fancc.
pertain bridge, dividing the faid parilh from
the parilh of Datchet, is ruinous, and that the
defendant ought to repair the fame ; that the
(G) Ante Page ao8.
defendants
502 Trinity Term tg & 30 Geo. 2. 1756.
defendants were found guilty; and that a fine
of twenty pounds was let upon them.
The queftion was, whether the length and
breadth of the nufance be fet out with fuffici-
ent certainty.
It was holden, that it is.
And by DeHifon ].-^Halfey*s cafe, according
to the report of it, 2 Roll. Abr. 181. is too
; nice, as to the necefHty of precifion id fetting
out the length and breadth of the nufance in
an indid\ment; and that in another report of
the fame cafe, Laicb. 183. no notice is taken
of the precifion mentioned by Rolle. In the
cafe of (H) Rex v. Smithy Trin. z*] G, z. which
was an indiftment for laying rubbilh iti a cer-
tain place in the King's highway, in the parifh
of Ottery St. Mary^s^ being between a certain
place called Didtridge^ and a certain houfe
called Foxen Holes ^ the nufance was ho'lden to
be fet out with fufficient certainty.
And by Fojler J.— .It has been faid ; that as
the lengtn and breadth of the nufance are not
fet out with precifion, this court cannot judge,
whether a proper fine was fet : but this court
will prefume, that the court of quarter fefli-
ons did fet a fine adequate to the length and
breadth of the nufance proved.
And by fVilmot J.-r-According to fome old
cafes, too much precifion was, in my opini-
on, heretofore required, in fetting out the
length and breadth of the nuianpe in an in-
diftment.
(H) Ante Page gl.
Hyde,
Trinity Term 29 & 30 Geo. 2. 17 56. 303
Hyde, on the Demife of Culliford, n)erf.
Thruftout.
UPON a rule to (hew caufe, why the judg- A judgment
ment figned in an a^ion of ejedment, >« »» adion
fliould not be let afide for irregularity, it ap- fctlfidT^^bc-
peared ; that judgment was figned againft the caufe it was
cafual ejedor, in the morning of the fifth figned too
^ay, after the end of the term wherein the foon-
judgment was moved for.
It likewife appeared, from the report of
the mailer ; that although the rule made upon
the motion for judgment againft the cafual
ejedlor is in the following words, " that if the
•• tenant in poffcffion (hall not appear within
" four days after the end of the term, judg-
•• ment may be figned againft the cafual cjec-
*' tor,'* jqdgment ought not, according to the
ufual pradice of the court, to be figned be-
fore the afternoon of the fifth day after the
end of the term.
The rule was made abfolute.
And by Denifon J. — The ufual pradice of
the court, and not the letter of a rule, ought
in fuch cafe to be adhered to.
Rex verf, Redman.
UPO N a rule to (hew caufe, why a view A view can-
ftiould not be had in an indidment, it p^^ be had
appeared, from the report of the Secondary of ^'^^1^^*^^'^^^
the crown-office ; that, according to the ufual ^t confcnt"
pradice of the court, a view ought not to be
ordered in an indidment, or in an informa-
tion without confent.
The
304 Trinity Term 29 & 30 Geo. 2. 1756.
The rule was difcharged.
And by Denifon ] — The pradlice of ihc
court has been very proper. The power given
fo the court, by the 4 Ann. c. 16. of ordering a
view, being confined to civil a<flions.
Rex vetf. Biffex^
UPON a rule to (hew catffe, wh v the acf--
judication of two juftices of tne peace^
ceflarytofct ^"^ ^^ order of fcflion confirming it, (hould
outthecvi* Hot be quaflied, the adjudication was to this
deuce, in an purport : ** Whereas complaint was made to
order made «« yg by j^ $, that twenty- four pounds were
roU°uftice« " ^"^ in arrear to him from J. N.atLady^
of the peace. ** ^^y '^^^ ^^^ ^^^^ > ^^^ ^^at he would have
** diftrained the goods and cattle of ihe faid J.
" N. in order to obtain fatisfadtion for the faid
*' rent; but that you the faid John Bijffex, in
*' order to prevent this, did, on or abput the
** twenty-feventh, twenty-eighth of twenty-
" ninth day oi Auguft laft, wilfully and know-
*' ingly, aid and affift J. N. in fraudulently
" conveying and carrying his goods and cat-
** tie off the eftate of J. S, and in concealing
** the fame, being under the value of fifty
" pounds, to wit, two cows, one heifer, and
** ten hundred weight of chcefe, of the value
** of twenty pounds, contrary to the ftatute of
*' the II G. 2. c. 19. whereupon we having,
•* in your prefence, examined the witneffes
*' produced by f. S. and having heard what
** was alledged in your defence, do adjudge
** the complaint to be true; and that the
*' goods and cattle were of the value of tweh-
" ty pounds ; and that you have, by virtue of
•* the faid ftatute, forfeited the fum of forty
'* pounds, being the double value of the goods
*' and
Trinity Term 29 & 30 Geo. 2. 1756. 305
** and cattle carried off to J. S. We there-
'* fore do adjudge, order and require you the
** faid John Bjffex, within three days from
*' the date hereof, to pay the fum of forty
'• pounds to y. s:'
The rule was, upon great confideration,
difcharged.
And by Denifan J.— It has been faid ; that
the adjudication is to be deemed a convidion ;
and confequently, that it is bad, becaufe the
evidence is not therein fet out. If the adju-
dication were to be deemed a convidlion, the
objedlion, on account of the evidence not be-
ing fet out therein, would certainly be fatal ;
for in the cafe of Rex v. Lloyd^ Mich. 8 G. 2.
it was holden ; that the evidence muft be fet
out in a conviftion i and the cafe of Rex y.
Pullen, Salk. 369. wherein it is laid down,
that it is fufficifent to ftate in a conviction,
that oath was made of the truth of the pre-
miffes, Vas exprefsly denied to be law.
But we are of opinion ; that the adjudica-
tion in the prefent cafe is to be deemed an
order ; and that it is not neceflary to fet out
the evidence, in an order made by one or
more juftices of the peace. In the cafe of
Rex v. Bathurfif Mich, 4 G. i. an adjudicati-
on, in a cafe of baftardy, was holden to be
an order; and it was likewife holden, that
although a penalty be inflifted, or a forfei-
ture be given, by a ftatute ; yet if the word
convict or fome word or words tantamount
thereto, be not contained in the ftatute, an
adjudication upon the ftatute is not a convic-
tion. In the ftatute, upqn which the adjudi-
cation in the prefent cafe is founded, neither
the word convift, nor any word or words tan-
tamount thereto, are contained, and confe-
R r queatl^
3o6 Trinity Term 29 & 30 Geo. 2. 1756.
quently the adjudication ought not to be
deemed a conviAion.
It has been faid; that it does not appear,
that the rent was due at the time of carrying
off the goods and cattle: but, as it appears
that the rent was due at the Lady-day preced-
ing, and that the goods and cattle were car-
ried off to prevent a diftrefs, it may fairly be
prefumed, that the rent continued to be due;
and the rather, as the defendant, in cafe it
had been fatisfied, had an opportunity of
Ihewing this in his defence before the juftices.
It has been faid ; that it does not appear
when the rent became due : but in the cafe of
Staggv. Hind, Salk. 139. it was holden; that
It is not neceffary to ailedge this, in the de-
claration in an aftion for rent in arrear ; and,
a fortiori, it is not neceffary to ailedge this in
^n order of two juftices.
It has been faid ; that the charge in the
complaint to the juftices, which is, that the
goods were carried off on or about the twenty-
leventh, twenty-eighth, or twenty- ninth day
of Auguft laft, is not fufficiently certain. As
part of the goods might be carried off" upon
every one of thofe days, the court, if it were
neceffary, would intend that to have been the
cafe, for the fake of fupporting the order of
thejuflices: but it is not neceffary to make
fuch intendment. If a time for profecuting
is limited by the ftatute creating an offence,
the precife day both of the offence, and of the
conviftiort, miift, as is laid down in the cafe
of Rex v. Pulkn, Salk. 369. be fliewn, that
the profecution may appear to be within the
limited time: but if no time for profecuting
is limited by the ftatute creating an offence,
it is not neceffary, that the precife day of the
offence fliould be flaewn in a conviction; and,
a for--
Trinity Term 29 & 30 Geo. 2. 1756. 307
a fortiori, it is pojneceflary to (hew this in an
order. In the cafe o( Rex v. Simp/on, Hii 3
G. I. which was a convidion for killing deer,
the offence was ftated to have been committed,
between the laft day of April and the firft day
of May : yet the convidion w?s holdgn to b?
fufEcient>y certain.
It has been faid ; that it is not ftated in the
adj Indication, that J. N. did carry off his
goods and cattlie ; and that the defendant could
not be guilty of aiding and affifting in carrying
off the goods and cattle of J. iV. unlefs J. iV.
did carry off his goods and cattle. In the cafe
of Rex V. Monk^ Mich. 13 G. 2. it was ftated
in a convidion, that the defendant did aid
and aflift in killing a deer. An objedion was
made ; that it did not appear whom the de-
fendant had aftifted ; and it was faid, that
there cannot be an acceffary, unlefs there be a
principal. The objefiion was over-ruled ;
and by the court, the convidion is in the
words of the ftatute, which has been always
holden to be fufficient. It is a miftake, to call
the defendant an acceffary ; for two diftinft
offences, one of which is killing a deer, the
other aiding or afljfting in killing a deer, are
created by the 3 £s? 4 ^. &? M. c. 10. and con-^
fequently, the defendant is as much a prin-
cipal within the meaning of that ftatute, as if
he had himfelf killed a deer. It may be inr
ferred from this cafe, that ii was not neceflary
to ftate, in the adjudication in the prefent cafe,
that y. N. did carry off his goods and cattle:
but if that were neceflfary, it is ftated fuffi-
ciently; for it is ftated, that the defendant
did aid and aflift J. N. , in carrying off his
gpods and cattle ; ^nd unlefs J. N, did carry,
off his goods and cattle, it is impofllble, that the
(defendant could aid and aflift him in fo doing.
Rtz Sheldoxv
3o8 Trinity Term 29 & 30 Geo. z. 1756.
Sheldon wrf Foot.
A pcrfon, T T PON a rule to fhew caufe, why the dc*
^^®***V^" \J fendant, who was in cuftody for want
a fuS " 9f^P^*^' ^^i'» ^^"'d not ^ difcharged upon
may be hoi- ifiKng common bail, it appeared; ffom the
den to fpecial duplicate of the defendant's difcharge, that
baiL he had been difcharged as a fugitive, under
an adl for the difcharge of infolvent debtors ;
but it likewife appeared ; that at the time the
defendant is in the duplicate faid to have been
abroad as a fugitive, he was abroad in the
courfe of his trade.
The rule was difcharged.
And by Denifon f •— It has been refolved,
at a meeting of all the judges; that the plaintiff
is not precluded, in a cafe like the prefent;
by the produdion of the duplicate of the de-
fendant's difcharge, from fliewing, that the
defendant was abroad in the courfe of his
trade ; and that if this be (hewn, the defen-
dant is not entitled to be difcharged upon
filing common bail.
Waller verf. Green, and Three Others.
The court re T T P O N a rule to (heyir caufe, why the
fufcd to per- |^ names of two of the defendants (hould
nut the names ^^^ ^e flricken out of the bail-piece, and why
^5l^Y?JlT an Exoneretur ihould not be entered as to them
f o be Itricken •.,,*.,. . it ^ r
out of the upon the bail-piece, it appeared; that thele
bail-piece. two defendants had been excepted to as bail
for J. S. that thereupon the other two defen-
dants were added as bail for J. S. and did
juftify ; ianfd that an adlion of Scire Facias was
brought againft the four defendants.
The
Trinity Term 29 & 30 Geo. 2. 1756. 309
*rhe court were at firft of opinion ; that the
names of the two defendants might have been
ilricken out of the bail-piece, without apply-
ing to the court ; for that, as they were ex-
cepted to as bail, and did not juftify, they
ceafed to be bail : but the mafter reported ;
that the names of fuch perfons are always con-
tinued upon the bail-piece, unlefs a rule of
court be made for flriking them out.
The court, upon this report, inclined to
make the rule abfolute : but, upon its being
faid, that if this rule (hould be made abfolute,
the other two defendants might plead nul tiel
Record to the adtion of Scire Facias^ it was
difcharged.
A rule was afterwards made ; that proceed-
ings in the adtion of Scire Facias (hould be flay-
ed, as to the two defendants, who now applied
to have their names ftricken out of the bail-
piece.
Rex verf. Fox.
UPON a rule to (hew caufe, why an order An order of
of baftardy, made by two juftices of thebaftardy
peace, and an order of feflions confirming it, quafhed as to
(hould not be qualhed, one objedion to theP^J^^j^^^^^^^-
orderof the two ju(tices was ; that there is no^^^g^^^ij^
adjudication in the order, that the child wasrcfiduc,
born in the parifh, for the relief of which it
was made.
This objecftion was over- ruled.
And by the court — It was holden, in the cafe
of Rex V. Moravia^ Eajl. 15 G^; a. and in the
cafe
3IO Trinity Term 29 & 30 Geo. 2. 1756.
cafe of Rex v. Rook, (I) Micb. 26 G. 2. that
if it can be collecfled from an order of baftar-
dy, that the child was born to the pari(h, for
the relief of which it was made, the order is
good.
Another objection to the order of the two
juftices was ; that the grofs fum of fifty (hil-
lings is ordered to be paid to the churchwar-
dens, for defraying the expence incurred by
the parilh on account of the Tying- in of the
mother of the child ; and it was faid, that the
particulars of the expence ought to have beea
mentioned.
This objeAion was over-ruled.
And by the court — As it appears, that the
money, ordered to be paid, was expended oi^
account of the lying-in of the mother of the
child, the order is good. In the cafe of Rex
V. Moravia, wherein a grofs fum of money was
ordered to be paid, for defraying the expence
incurred by the parilh on account of the ly-
ing-in of the mother of the child, and other
incidental charges, the order, although the
words, relative to the expence, were more ge-r
neral than the words in the prefent cafe are,
was holden to be good.
An obje(f>ion was made to a part of the or-
der of feffions, whereby fccurity was required
to be given by the putative father of the child,
to perform the order made by the two juftices.
This objedion was holden to be good.
And by the court — ^The court of quarter
feffions isnotimpowered, either by the 18 £//z.
(I) Ante Page 6i.
^.3-
Trinity Term 29 & 30 Geo^ 2. 1756. jn \.
€. 3, or by the 6 G. 2. f. 31. to require fuch
fecurity from the putative father of a baftard
child.
A rule was made for qualhing that part of
the order of feflions, which related to the fe-
curity, and for confirming the order of the two
juftices, and the refidue of the order of feflions.
And by Denifon J. — In the cafe of Regina
V. Cbaffey^ Lord Raym. 858. an order of baf-
tardy was quafhed as to part, and confirmed as
to the refidue ; and the fame was done in the
csitoi Rex V. Majftnger^ Trin. 5 G. 2.
Rex "uerf. the Inhabitants of Duns-Tew.
IN an order of fefliions it was ftated; that a fcttlemcnt
the Pauper t and Goodman his father-in-law, may be gain-
occupied a farm, at the rent of eighty pounds fd by occupy,
a year, in the parifli of Duns-Tew^ as part-*°^*^^°?" ,
ners; that in the year 1747, Goodman hired a^^J'^^^J^^
farm in Little-Tew^ at the rent of fifty pounds an aaualhir*
a year ; that before Goodman entered upon iheing.
farm in Little-Tew^ the Pauper alked him, if
he depended upon his going with him ? To
which Goodman anfwered, yes, for I cannot go
without you; that Goodman and the Pauper '
went with their joint ftock from Duns -Tew to
Little-Tew y and refided upon and managed the
farm in Little-Tew jointly feven years; that
the receipts for the rent were given to Good^
man alone ; that, upon the taking of a diftrefs
for rent in arrear, Goodman alone executed a
billoffale of the ftock to the landlord; that
when the bill of fale was executed, the Pauper^
although prefent, did not claim any intereft in
theilock; that in the year 1754, ^^ Pauper
left the farm, and Goodman allowed him fixty-
two
J
Trinity Term 29 & 30 Geo, 2. 17^6.
two pounds for his (hare of the ftock ; and that
the Pauper was foon after removed by aii ordef
of two juftices to Duns-Tew.
The queftion was, whether the Pauper did
gain a fettlement in Little-Tew ?
It was holden that he did.
And by the court — An adual hiring of a te-
nant is not neceflary to the gaining or a fettle-
ment ; for as no power is given, by the 13 £^
14 C. 2. c. 12. of removing a perfon, who
comes to fettle in a tenement, of the annual
valde of ten pounds, ftich perfon is irremove-
able ; and confequently, he may gain a fet-
tlement.
It has been faid ; that no credit w^s given^
by the landlord of the farm in Little-Tew, to
the Pauper : but this is not neceflary ; for the
fettlement, wliich is gained by the occupation
of a tenement, of the annual value of ten
pounds, is not gained, by reafon of the credit
given by the landlord to the occupier, but be-
caufe the legiflature have in eflfedl faid, that
the perfon of ability to occupy fuch tenement
fliall not be removed.
It has been faid ; that the Pauper was, at the
utmoft, no more than tenant at will to Goodman :
but an occupier, as tenant at will, may gain a
fettlement. In the cafe oi Cranky v. St. Marfs,
Guildford, HiL S. G. i. it was holden ; that a
fettlement was gained by occupying a mill two
years, in purfuance of an agreement with the
leflee of the mill, although there was no aflign-
ment of the leafe. In the prefcnt cafe, the
Pauper, in purfuance of an agreement with
Goodman, did occupy the farm in Little-Tew,
jointly
Trinity Term 29 & 30 Geo. 2. 1756. 313
jointly with Goodman^ feveral years ; and con-
fequently, as the annual value of the farm
M'as fifty-two pounds, the Pauper did gain a
fettlement in that parifli.
Kearle qui tam njetf. Whiteland.
UPON a motion, that the defendant Th« ^«'?» i,
might be allowed to exhibit a petition, rf^^'^l!**'
ii°f_ • J r t-f*^' j-xftatutc, ought
to be brought up, m order for his beyig dif- to be conftra-
chargedoutof prifon, it appeared; that ih^t^ next term,
defendant was charged in execution in ///ijry in which the i,
term laft; that the 2 G. 2. c. 22. uppn whijch^^^"^^ '^fl"*''*
ftatute the defendant's right of petitio^ng is^^
founded, after having been feveral times con-
tinued, was further continued by the 29 G. 2.
c. 28. that the royal aflent was not given to
the latter ftatute, until the twenty-ninth day
of May laft ; and that by the 8 G. 2. c. 24. it
is provided ; that no perfon ihail be allowed
to exhibit a petition upon the 2 G. 2. c. 24^
unlefs the petition be exhibited before the end
of the term, next after fuch perfon fliall be
charged in execution.
The queftion was, whether leave could be
given to exhibit the petition ?
It was holden, that it might.
And by Dertifon J. — As the laft Eajier term
was at an end, before the royal afTent was
given to the 29 G. 2. c, 28. it was impoflible
for a prifoner, who was charged in execution
in the laft Hilary term, to exhibit a petition
in the Eajicr term. This being fo, all the
judges, upon conferring together, have been
of opinion; that the words the next term'in
Sf the
514 Trinity Term 29 & 30 Geo. z. 1756,
^^^>— ^^^w— If^^i— — ■ ■ ' — ^— •■> . ■
the 8 G. z. c. 24. ou^bt to be conftmed tbe
next term, in wnicb it was poffiUe to exhibit
t petition ; and confequendy, that a priiboer,
charged in execution in IBloiy term laft, may
exhibit a petition in this term. .By the Htbess
Corpus aA, the liberty given to a prifoner, of
petitioning to be brought to his trial, is con-
fined to the firft week of the next term, or to
the firft day of the next feffions of C^er and
fnmintr, or general goal delivery, after the
}>rifoner was committed ; yet it may ht inferred,
rom what is laid down in lord jfylefburf^ cafe,
$alk. 103. that, if the Habeas Carfms aA be
iufpendal by another z& of parliament, a
priloner may petition during the firft week of
the next term, or upon the firft day of the
next feffions of Oyer and Terminer^ or general
goal deliveryi after the expiration of tne fuf*
pending adl.
Rex verf. the Inhabitants of Taunton
St. Mary's*
A certificate T^ an order of fefljons, it was ftated; that
holdcn to be * footer t Bagg went, in the year 1702, to
at an end, by refide in the parirti of Taunton St. A&r/s, un-
reafonofits der a certificate from the parifh officers of
b^^ ^td^d ^^^^^^^ ^^' ^^^yy > *3t the faid Robert after-
u^de/formaT^^''^^/^^"'^"^^^^ the parifh of Taunton St.
ny years, Jameses ; that after his return, he had a fon
Eoberi born in the parifli of Taunton St. Jameses;
that the tauper, who is the fon of Robert the
fon, was born whilft his father refided in the
ieparate houfe ; that after the death of Robert
the grandfather and Robert the father, who
both to the time of their deaths refided in the
parifh of Taunton St. James's, the Pauper
ferved an apprenticelhip in the parifli of
Taunton
Trinity Term 29 & 30 Geo. 2*. 1756. > 515
Taunton St. Mary^s; and that the certificate
was never delivered up.
»
The quejdion wds, whether the Pauper did
sain a fettlement.in the parifh of Taunton St^
Marys ? ' ' /
It was holden, that he did^
And by Denifon J.*— It has been faid; that .
d certificate does not extend to a grandchild*
It has been alfo faid ; that Robert, the fon^
was fo emancipated from his father^s family,
by marrying and living feparately from his
father, that his fon» although the court Ihould
be of opinion that a certificate does extend to
a grandchild, might gain a fetdement by
ferving an apprenticeihip in the parifh of
Taunton St. Marfs. It is not necefl&ry, to give
an opinion upon either of thefe points ; becaufei
we are of opinion, that, as there was no refi-
dence under it for fo many years, the Certifi-
cate, although it was not delivered tip as it
ought to have been, was at an end before the
Paupfr^s apprenticciOiip began, and confe-
quently, that he did gain a fettlement in the
parifh of Taunton St. Marfs. If the grandfii*
ther had been living at the beginning of the
Pauperis apprenticelhip, he could not, after
being fo long returned to the parilh of Taunton
St.Jatnes\ have gone to refide in the parifh
of Taunton St. Mary% under the certificate*
Sf2 Giddlci^^
3i6 Trinity Term 29 & 30 Geo. 2. 1756.
Giddings verf. Giddings.
LerregiTcn, A p T E R a demurrer to the defendant's
^^*'^^' XJl plea had been argued, and the matter
withdraw a ftood over fof the judgment of the court, a
ileinurrer,and rule was made to (hew caufe, why the plaintiff
to reply. (hould not have leave to withdraw his de-
murrer^ and to reply to the plea.
This rule, no caufe being fhewn, was af-
terwards made abfolute.
Rennell verf. RennelL
If the condi- A N aAion of debt being brought upon a
S'fufeiwt JTJl bond, and Oyer being prayed, there ap-
ncrformancc pcared to be a recital in the condition of the
nuft be plead- bond; that IVilliam Rennell ^ father of the
cdinthe plaintiff and defendant, had by his will be-
words of the queathed to the defendant the remainder of an
condition. ^^^^^ f^j. ^jj^gg ji^gg^ ^jjich the teftator had
in a certain garden; that he likewife be-
queathed to the plaintifFa hogftiead of cyder,
to be paid him every year that apples enough
(hould grow in the laid orchard to make two
boglheads of cyder ; and the condition of the
bond was, that the defendant (hould deliver
to the plaintifFa hogfhead of cyder every year,
according to the true intent and meaning of
the faid will. The defendant pleaded ; that
upon a certain day he fold his intereft in the
orchard ; that thereupon he agreed to deliver
a hog(head of cyder to the plaintifT, every
year that apples enough (hould grow in the
laid orchard to make two hoglheads of cyder,
in fatisfadlion of the hog(head of cyder be-
queathed to him, althQugh the hog(head of
cyder, to be delivered by the defendant,
(hould
Trinity Term 29 & 30 Geo. 2. 1756. 317
Ihould be made of apples, which did not grow
in the orchard mentioned in the condition of
the bond ; that in purfuance of this agreement,
the bond was entered into; and that he bad
performed the condition of the bond.
Upon a demurrer to this plea, it was hol-
den to be bad.
And by Denifon J. — If the condition of a
bond be in general and affirmative terms, it is .
fufficient to plead general, performance of the
condition : but if the condition of a bond be
fpecial, performance muft be pleaded in the
wordsof the condition. In the cafe of Brooks v.
Dowfff which is cited in the tzk of ff^oodcock v.
Cole, I Sid. 215. it is laid down ; that in an
adlion of covenant upon an indenture, in
which there are divers affirmative covenants,
it is fufficient to plead performance generally :
but that in an aAion of debt upon a bond, of
which the condition is fpecial, performance
muft be pleaded of every thing comprifed in
the condition.
Pqfier J. and fVilmot J. concurred in this
opinion ; but, as it appeared, that a hogfhead
of cyder had been delivered every year, in
which apples enough grew in the orchard
mentioned in the condition to make two hog-
flieads, the pronouncing of judgment was fuf-
pended for a week, in order to give the de-
fendant time to move for leave to amend.
T H B B N D.
INDEX.
M
• i
I N D E X
TO THE
CASES, Reported or CSted.
The cited Cafes are printed' in ItaUck; and to fudi of^
thefe, the Authority oJF which was denied, the Letter D
is annexed.
A. P«g«i
AB E R Y V. EMcKeftfott 25b
Adams t. F^reiniait 8 1
A^cdekv. Gill €0
Alderton v. FelixJIoiAje 287
Anonymous, 51, 77,78, \ii^
121,136,154, 1 55, 260,
» Biittic 'U. BroWrt 74
JSajftf^ V. FairlaM IT^
BiBOr croft V. Butnihtm BkAdtii^i^
Aircher v. EHard I05>
Ahiold V. Sqittfc 8i
if/ft/^j^ V. FreckktBH 32
ii< ■ V. Kimfton 19(0
Afhwonh v. Lord 232
Aghr V , Finch 2^1
Attrcrley v. Evarts 369
i^/A#/, £)«*(? o/v. »^/W//rj: 47
Aykftmry, Urd*i Cafe 314
B.
^AGGU Cafe, (D) 248
Baines <£^. Bfackb6um 2 16
B'ahk ofEnghni v. JToi/ 97
Bvnthdm V. Net her fall 28 1
Barnard <:;. Reafon 236
B^D^et V. Hart 214
B^rksv. Mafon ±6a
B^tHvick V. Symonds • i^
Biffe V Harcourt, (D) I53
Booker v Friend lQj[
Bd^en <;. BarrtcfC lo6
Brtfian v. Currint 2t4
Brock V. Elvers 203
Brooks V. Down. 307'
Brdwnfmith v. I>siltrf 4j>j('
Biiih ^j. Railing 28^
ByJ^endoH v f ^J^ 282
Ai;<tf0n V. BalemaH, (D} 3^
c.
(]|Alhaghan v. PeiWett gtf
Carey v HMiot ' 9
Catling V Bowling gO
Catling V. Bowling i^o
Tt Qarke
INDEX TO THE CASES,
Qarke v Darby
-v. Glafs
l*age.
43
234
28
138
Qement v Reynolds
Collins V Rcnifon
Commins v Oakhamptoni
Mayor 45
Coote V. Howell 30
Cope V Marfhall 234
— ^v Marfliall 285
CtrdvMii f « Mackareii 32a
Couplaod V Frinbo V 245
Cranky v. St. Mar fs^ Guildford^ 1 2
Cranftonv Clarke 78
Crozier v Srork 28
Culliford V Thruftout 303
Cunningham u Johnfon 19
D.
J^Alfimy. tiartcUffe 233
Davifon ^. Davifon 95
panbuz v. Pender 59
Downey v. Dee, (D) 32
Dtnnis v. Fletcher I07
DodfoMTth V. Anderjm 193
Doyley v. Piiftow 221
Drummond V Duke of Bolton 243
Dryden v. Langley 285
. E.
'^LdertorCs Cafe 1 29
-S///W V. Cheval 222
Emmerfon v. Cavcndifti 1 58
■■ ■ v. Hafltins 53
Efplin V. Smollet 208
EfpUn V. lym*//?/. 301
F.
pane's Cafe 186
Fazakerly v. Wiltjbire 255
Finch V , Diiddin 150
Fijber v. SmerviHe 300
•?-— V. Wf^^ 68, 70
JFoIey a>, Laoghorne 50
Ford <r. Gainer
Foxv. Co(>e
/i/r/i// V. Hallam
G.
QAIIy V Cleeg
Gardiner v. Atwatcr
Gib/on V. L/'w/y
Gidciings v biddings
Goddard v. Law
GodfrefsCafe
Golding V CrowIe
Grafs Cdfe
Grtipm V. Heather
Green ^. Haffel
V. Wefton
Griffith ^. Griffith
' ■ V. Hollter
V. Walker
-^— — V. Williams
I V. Williams
Grove v.jHart
Grub 9. Smithers
Gwynne v. Ao/f
H.
flAllet V. Hodges
*•* HalfefsCafe, (t))
Hamilton^ Dutchefs^s Cafe
Hampfon v Adfliead
Hankeypa Wilfon
Harbin v. Gr<?^«
Harding "o. Stafford
^. Willkin
Hargran v. Sf'W
/]ferr// V. Mitchell
Harris V. Wakeman
Harrifon ^y. Alexander
Hawkins tf. Eiailerbrookc
Hayley -i^. Grant
Haywood s* DavU
Page.
207
154
240
47
265
256
316
220
184
I
57
55
233
209
83
494
54
S6
87
33
120
82,83
29
30
127
91
823
57
133
120
1S4
99
254
156
"5
. 234
Herbert
REPORTED OR CITED.
Herbert v. Williams
Hclketh v. Gray
Hewitt If, Penny
Hi Hard v. Cox {D)
HoUidge V. Hungerford
Holt V. Burleigh
Honiton v. St. Mary Axe
Hookv. Moreton
Hord V. Stoke.
Howard «i;. Chefliire
. V, Chefhire ^
Page.
24
185
99
S3
256
296
287
137
67
250
260
97
125
27
Zi8
Howell V. Cferittf
Powers Caje
Huifh V. Sheldon
Huffey V. Welby
yACKSON V. G/iAr<?^ (D) 1 49
%/ Jennings v. Vandeputt 222
Jennings v. Wilfon 103
innholders Company v.
Gledhill 1274
Jone$ t;. Bi(hop 64
K.
J^EARLE V. Boulter 191
Kearle v. Whitelai>d 313
Kelly v. Devereux 59
Kemp V, Mackarill 130
Kennedy «i;. Kennedy 99
Kennonv. Owen 194
Kenrick v. Taylor 31
Kirk 1). Broad 7
TAncafiirev. KiUingworth 189
Z//7ntf V. Co//fl« 42
Laughter'* s Cafe (D) 244
Launder v. Cr/^// 245
Lawrence V. Bofwell 100
Lay cock v. Gar forth 6
Leathley v. Webfter 251
Lee V. Wallis 262
Leigh V. Brace 68
T
Page,
Lewis <v. Wallis * 13
Londtn, City vf v, Mmley 255
Ly/i«^ V. Rdoody 184
]y[ACLISTI^.Ekins . 73
Madox*$ Cafe 137
Marlborough^ Duke*iExecU'
tors V. fVidmore 97, 235
Maxwell v. Sharp . J87
Mtfj^ V. King ay I
Maynard v. Hopkins " 4$
Methuen (z;. Marten- .107
Michael v. Alejlree . ^j
Mills v. Gregory . jLa?
— ^v. Long 136
Milward v. Ingram^ (D)- ,271'
Mitchell V. Robinfon . ia^40
Moir %;^ Munday i^l
Moore y. Ferni hough . 48
Mordecai V. Solomon 172
Mofely V. Warburton 86
Murray v. Wilfon * 1 7
N.
JiJEVILv. Bates 63
Nifbett V. Griffith 97
Newland v. Ofomond 93
Newton v. Swymmer 43
Norton v. Voules 180
O.
QNSLOiy V. Booth 19
O/i;^ V. Addifon 137
P.
pAGE V. Harwood 22$
* . V. Round 203
Pantfune 1;. Mar (hall 162
Pawfon «v. Scott 76
Pearce v. Davy 293
Perkins v. Smith 40
Perry v, Nicholfon ' 240
Peter v. Stafford 301
Pike V. Corbyn 78
1 2 Pilkington
INtoEX TO THE CASC5,
Page
Pilkington^ HAmtb fS3
PkUips V. Bwry 86
■ ■■■ V, F§wlir 291
Pitts y.Milbr 149
Portman v. Okeden 1 79
iV/ff V. Gri^tA, iD) is
Pwrefoy v. J^^/ 283
&UILTBR Y. iVw^on 177
JlEjtD V. Ckernky JQ
-— V. W'lViiw/, (D) 82
tUgina V. BartuAy • 205
m'^*^- V, Chaffey 311
■ ■ . « - V. Toitw 205
« ' i «i ¥. TIfayar/jr 206
RMnell V. ftetincll 316
Refc ^. Abingtotij St. He-
len** Overfeers
i»-v- V. Addvogton
Aldcrfon
Afliton
Barton
. Bathurft
— — V.
••^- V,
•— - <i;.
"^" ^•
*^- «i;. Beaumont
-^- a;. Bedell
— — V. Bennett
— - V. Bennett
*—- V. Bennett
«*—. V. Berkley
»— - -y Berkfliire Jufliccs
^. V. Biffex
«*— V. Blower
——V. Blunt
--*- *y. Botolph St. Inhabi-
tants
-— «r;. Botwright
•—• V. Bow
— ^ V. Boys
— — V. Boys
t— V. Bradenham Inhabi-
tants
116
2|9
280
>59
2^5
305
278
76
102
169
247
123
160
304
119
102
198
H7
75
108
143
285
Rex <c; Bridges
V Briftow
^ Brookes
— - V. Buckingham Inhabi-
tants
-*- ^1. Burgefs
-r-- V. Burgefs
Page.
72
13«
167
II
128
169
-rr- v. Carmarthen Burgefles 79
-*-• V. Chapman 203
-^- V. Chatley 15a
— - V. C^lyer 44
-^- *i'. Corbett 267
— - V. Curie 279
•^ — v. Davies 241
— — V. Davis 1^3
— ^ V. Davis 2^.6
•^- «. Day 2Q2
— • V. Doncaflcr Mayor 37
•^— «j;. Doncafler mayor 39
V. ^^^J' 142
— ^- v. Driffield 146
-f— V. Duns-T^w inhabi-
tants 31!
—p. 'v Dyke 20, 196
«— • *y. kate-ing Inhabitants 88
— 'V. Eaft Lidford inhabi-
tants 301
— - V, Farewell 1^4
— - V. Fittleworth Inhabitants i ^
90
16
129
19
206
— ?- *v. Fox
T— 'y Furfer
V. Gardiner
— V. Goodal!
— V. Goodman
— - •v. Covers
—- V. Granhorougk Inhabi-
tants
— V. Greene
— - V. Grew
— - V. Griffith
V. Haddock
— *v. Hanfon
— *- «. Harrifon
3
281
249
253
ao
229
no
Rex
REPORTED OR CITED.
Page
Rex V. Haflemer^ p)rpora-
rion . io6
— V. Hellier aja
— - V. Heydon BurgcflTes 2o8
— V, High and Low Bi-
(hopfide Inhabitants 231
— - V. High ar^d Low Bijbop^
fide Inhabitants 288
—- V. Hood i6\
— - -0. Hord 1 76
— V. Horfl^y Inhabitants 228
— — V. Jermy 47
— - V. Ilam Inhabitants 8
•-— V. Jones IQ2
*^r v. Jopfon 27
i— -- v. Rendrick 114
--- V. Kingfwood Inbgbi.
|ants 283
-T- V. Laurence 2i8
•-9-9 V. Lawfon ;2i5
•-f-r v, Lediar4
!r— <u. Ledi^rJ
«--- <z;. Lediard 242
!P^» V. Lewis 205
#-r- V. Lewis 253
-,--- V. L&yi 305
— *. V. Lockerly Inhabitaitts 9
^- ^. Loggm 50
---r t^. Marden Inhabitants 9
•^•T ir^. Marwood Inhabitants 268
rr^ V, Mailers 122
.-—-r V. Middiefex Juftices 148
—- V. Minchinghimpton In"
habitants 22
Monk 307
61, 309*^10
206
r-f- V. Newfii/ije Mq^^r 39
*—- V. Newland ^6
t^' V. N(e;wfl|gra 2i i
ip-- V. Nfcjw?|9 229
T~ •». Nottinghaijfi Ju(^cies^i^
>-— tf. NpUingham Mayor 3(|
Page.
Rex ^>. Nottingham, St. Pe-
ter's Inhabitants 287
— — V. Norton Inhabitants 199
-^ V. Orford Mayor 55, 147
— V. Owen
— V. Peck
V. Phillips
—- V. Ponfonby
— - V, Powell
V. PuUen (D)
— - V. Purdue
-*- v. Read
—— V. Redding
— V, Redman
—- V* Roch
— - v> Rollo
— V. Rook
•*— V. Rook
^ — — V. Rye Juftices
6 1 — V. Scarborough Cbrpo
112 , ration
30
89
263
229
306
42
62
303
233
158
6t
310
^5
-.^ — V.
^-^- V. Moravia
—— V, Severn
Sheppard
10'
20'
I
— V. Sherborne It^habitants 1 71
— V.
-— V. Silton Inhabitants
— — «. Simons
— — V, Simpfon
-—. V. Smith
— - V. Smith
— - V. Sowerby Inhabitants
— — V. Spencer
— -- ^. Stanley
— - V Stephens
— V Steyning Inhabitants
•!— ' V. Stirling
— . ^. Sudbury Inhabitants 200
*?— V- Surry Juftices j^
-r--r t0 Swiqdtner 103
— T. Talbot 129
— V. Tarcjebigg Inhab. lop
— - V. Taanton, St. M^r/s
Jpbabiiants 31^
Rex
22S
3*
307
98
30Z
201
14
139
257
92
1 74
INDEX TO THE CASES,&c.
Page.
50
195
263
148
142
Rex «• Tew
.—- V. Tew
•— Y. 7ucker
V. IVelbfck Inhchitanit
•— V. WaDnop
— ^ V. Weftmoreland Juf-
tices
*— t^. Weft Shefford Inha-
bitants 2
«-— V. Whitchurch Inhabit
tants
.— V. HTtld
*— V. Williams
— • V. Willianw
— v.lVjat
•^- V. Yarmouth Inhabit*
tgnts
Rijmlds V. Gray, (D)
» I V, Reynolds
282
134
60
140
H5
180
170
222
163
166
^3
69#7i
125
Ribout V. Wheeler
Richards v. Holditck
Rigden v. ^11//^
Ruflei's Cafe
S.
J^AVJly.RoberU %
5avery V. Serle 150
Saxby V. Kirk us |i6
Say V. Lord Biron 6'^
Schomberg v. Naft 113
Sheldon v Foot 308
ShermatCs Cafe 94
J^impfon V. Ward 151
Skinner v. Gunton 163
iy«//A V. Huggins 7.6j[
V. Jones (O) 48
Spratt V. Frederick 51
Stagg V. H/W 306
Stiilv. Rogers 25
^//// V. Still 6
Stonehoufe v. VowcU 88
T.
^Hames^ Earl v. Snatchbull 215
Thomlinfon t>. Brown 215
Tkrqwer*sCafe 168
Page.
Tilt v. Bartlet 126
Tomkins v. Gratton 266
Todd V. Dodd 5
Tooker V. Duke of Beaufort 297
Tourville v. Nalh 76
Tourville v. Pony j 72
Tubb V. Tubb 58
Turmr v. Cor dwell 46
Turner v. DiWi/ 100
Tyler V. Browning 4
U.
UPpendale v. Ltghtfoot 217
W.
Il^Aganor^s Cafe^ 182, 183,255
^^ Waller V. Green 308
Warnhoufe v. Thruftout 49
Watkinsv Hybert 48
Walkins v. Parry 117
Watfon V, Tackfon 32
Wat fin V. Jackfin 104
Watfin V. Mitchefi 222
Weaver v. Chandler 7
Webb V. Paternojier 3
Wells V. Ofomond 127
Wefton V. Donelly 273
Wheatley v. Hall 272
Whitfnore v. Rock 299
Wicker v. Woodfall 49
Widmore v. Cfcri iji
Wigan V. Holmes no
Williams v. Williams 219
Wilmot V. Butler 149
Wilfon <o. Wymonfold 268
Wing field v. Stratton 15
Wood V. Lake 3
Wood i> Lord Biron 62
Wright V. Macayoy 12
Wyndham v. Bowen 141
Y.
YATES ^.Carlifle 197
Teomans v. Bradjbaw 84
Young V* Lynch 84
INDEX
INDEX
TO THE
PRINCIPAL MATTERS.
A.
Aaion upon the Cafe.
l/ I ^HE owner of a houfe,
X although he be not in
pofTeilion, may maintain an
aSion upon the cafe, for top-
ping up the windows of the
houfe. Page 2i6
Adminiftr^tor and Letters of
Adminiftration.
I. Tout temps prijl, the manner
of pleading it by an admini-
ftrator, i8
a. The right of granting letter*^
of adminiAration does not de-
pend upon the dying within
a diocefe, but upon the leav-
ing of goods therein. 99
3. Letters of adminiftration may
be aScd under, until they
are revoked. 99
4. If letters of adminiftration are
revoked, after execution has
been executed upon a judg-
ment, an audita quereb lies.
Page 100
Agreement.
I. The perfon who has agreed
to keep a chariot in re^iair, is
bound to take notice, when
the chariot is in want of
repair.
Affirmation.
"4
. Th^ affirmation of a Quaker
is not admifllble, againft a
perfon who fs charged crimi-
nally, ^Z
. The affirmation of a Quaker
is not admifllble, to excul-
pate himfelf from a criminal
charge, 75
Amend-
Amendment.
t. An tmi&dmeot is not in the
general to be permitted after
two termsy Page gg, 236
3. An amendment, bv which the
Feftttg #ai changed, permitted
after tix^ terms, 294
3. An amendment permitted af-
ter two terms; becaufe the
time for bringing a new
adion was eipired, 235
4. After a caufe was made a
rmM#/, an amendment was
permitted, ^85
5. An amendment permitted,
after a demurrer had been
trgued, and the matter flood
for the confideration of the
coort, 316
6. After a demurrer had been
irgtlei, ind the jufUces had
ghrifl their opinioiis, Jiidg-
iMIit wfti furpended tor a
wtdi, 'ill order to gire the
dtftft^nt time to move for
leave to amend. 317
7 • An amendment of the iflue
and nij! print roll was permit-
t^d, 76
8. An amendment ti a diftfin-
gaSf by adding a tejle^ was
p^rmitted^ 62
9. An amendm^ht €X k far i facias ^
by lidding a tefe was permit-
ted^ 12
10. An amendment of the iron*
Jtript of a record of an inferi-
or cdtiirt, was permitted, 59 .
11. An •amendment of a matter
which was a difcontinuance,
was permitted with confent,
12 An amendment, by which a
new right of aSion would
have been alledged^- was re-
futed, 235
INDEX TO THE
13. An amendment of an order
. of feffions was refufed, Pageii^
Amotion.
!• The power of amotion is in-*
cidental to a corporation.
3'. 249
2. The power df amotion cannot
be exercifed by a part of a
corporation, unlefs it bevefted
in fuch part, 38
3. Non-reiidence in a borough,
is not good caufe of amotion,
39
4. Abfence many years from a
borough, is good caufe of
amotion, 39
,5 A total defer tion of the duty
of an office is good caufe of
amotion, ^
See information in the nature of
a quo umrranto^ 4.
I . An ipjM-etttifcfcfhij^ is d^ferftiih^
ed by th6dea1h of the niiifter
or ap^«n(ict, 68
Atfachttient.
I. An attlchment may be award-
ed in the firft inftance, for
fpeatiiig c6hiemp(l]6(i^ W6rdl
of the etturt, 48, 114.— For
the noti^p^ynrteift of cbfts
which hare been tated, 48.
—For a refcous returned by a
(heriff, 121
12. An attachment ag^infl d peer,
for difbbcdieiK^e to a proeefs
of the courtv 5t>.u-^gaioft the
chancellor to la biAop for not
returning - a writ directed to
the bifliop, sa^^Af ainft sn
attorney for n^j^eAin^ hh
client's caufe* 51
I. The
PRINCIPAL
Attorney.
1. The attorney in a caufe ear-
ner be changed without leave
of the court, during the caufe,
218 -/But a new attorney may,
without leave of the court,
fue out a fcire facias upon a
judgnnent. Page %\i
2. It is the duty of an attorney,
to proceed in a fuit commenc-
ed upon the credit of a chent,
althou£^h the chent negled to
bring him money, I73
3 An attorney is anfwerable to
his chent for exceeding his
power, 259— For an injur)
fuftained by his negka, 51,
1*^2. — For an injury fuftained
by his mifbehaviour, 169
See Attachment, 2.
4. An attorney is bound, upon
the payment of what is due
from a client, to re-deliver a
deed to the client, 125
5. The bill of an attorney for
making conveyances may be
taxed, . 233
6. An attorney is not obliged to
pay for the plea, in a cauft
wherein he is plaintiff, 77
7. The Venue ciM\noi be chang
ed, upon the common affida-
vit, in a caufe wherein an at
torney of the court is plain
tiff, 153^^8^
Award.
1. An award is good, althoiigh
it was made by an umpire: .
chofen by the arbitrators be
fore the time for their makings
an award was expired, 22a
2. An award, by which cods are
awarded generally, is good,
240
MATTERS.
. An award made by an umpire
was fet afidc ; becaufe the
rii^ht of nominating the um-
pire was tofled up for by the
arbitrators. Page 99
Bail.
. Special bail is not ncceffary^
in an a£tion of debt upon «
judgment, if there were fpc--f'
cial bail in the original aaion,
43, 161
1. A perfon who has been dif-
charged as a fugitive, may be
holden to fpecial bail, 308
5. An affidavit, to. explain a po-
faive affidavit, that above the
fum . of ten pounds is juftly
due to the plaintiff, was not
permitted to be read, 54
4. An affidavit, that the defen-
dant is indebted fo the plain-
tiff in the fum of one hun-
dred pounds, upon the penJ-
ty of a bond, is not fufficient
to hold to fpecial bail, 109
5. An affidavit, that the defen-
dant is indebted to the plain-
tiff in the fum of twenty
pounds, upon breach of arti-
cles, is not fufficient to hold
to fpecial bail, 1 09
f^ If one perfon be excepted to
as bail, and another be added,
the name of the former may,
with leave of the court, be
ftricken out of the bail-piece
at any time before an adion of
fcire facial is brought, 58,
309. — And after it is brought,
the proceeding, as againft him,
may be flayed, 3^9
. If the principal be rendered
by the bail, an exoneretur may
be entered upon the bail-
piece, 8
Uu
8. Th^
INDEX
8. The recognizance entered
into by bail, upon removing an
iodidxnent, is to be difcharg-
tdf in cafe the defendant be
acquitted. Page 1 5
9. The recognizance enterei
into by biiil is, in (Iridnefs 0}
law, forfeited, upon the re-
turn of noH rfl tnvmtus to a ca-
phu ^/i^h/aciendum, 1 2 1
10 In an adion upon a bail bond,
the arreft is not traverfable :
But the ifliiing of the writ is,
117
Bank-note.
.1. The property in a bank-note
paffa by the delivery of the
note, in the courfe of trade,
for a valuable confideratton, 74
1. The child oiF a married wo-
. man naay be a baftard, al-
though her hufband be within
the tour feas, 62
2. A married woman may be
admitted to prove, that a child
born ofi her body was begot
ten by a man not her huf-
band : but (he cannot, to
prove that her hufband had
no accefe to her, 62
3. An exprefs adjudication, that
the baftard was born in the
parifh, for the relief of which
the order is made, is not
neceflary in an order of baf
tardy, 61, 310
4. An order to pay a groTs fum,
for the expences incurred by
. a parifh on account of a baf-
. t^rd, is good, 310
5. An order of Seffions, requir-
. ing the pptative father of a
. baftardtogivcfccurityforper-
TO THE
forming an order of two jufli-
ces, is not good, Poge 310
6.Thc putative father of a baftard
may take it from the parilh,
and maintain it himtelf, 94
Bond.
1. The intention of the parlits
to a bond is to be regarded, in
conllruinj the condition of
the bond, 244
2. The penalty of a bond is not
always faved, although the
performance of one part of a
disjundive condition be ren-
dered impoilible by the ad of
God, 244
3. If an obligor undertakes for
the aa of a ftranger, the
penalty of the bond is not fav-
ed by the rcfufa^ of the ftran-
ger to do the adf 1^7
4. If an obligor undertakes
for the refignation of a living,
it is mcumbent upon him to
procure the acceptance of a
refignation by the ordinary,
187
5. If the condition of a bond be,
that an apprentice (hall not
abfent himfelf from his maf-
ter*s fervicc, the whole pe-
nalty may be recovered^ in
cafe the apprentice do abfent
himfelf, 116
6. If the condition of a bond be
to pay divers fums of money
by inftalments, an adion lies
upon the firft failure of pay-
ment, 3^
7. If the condition of a bond be
general, it is fufBcient to
plead the performance gene-
rally : But if it be fpecial, per-
formance muft be pleaded in
the words of the conidition, 31 7
Bribery.
PRINCIPAL
Bribery.
1. Giving a pcrfon money to
forbear to vote^ is an offence
within the meaning of the 2
G. 2. r. 24. although there be
not a forbearing to vote
Page 282
2. The perfon who has received
a bribe, is a competent wit-
nefs, to prove the giving of
the bribe in an a3ion upon
the 2 G. 2. r. 24. 290, 291
By-law.
^ . A by-law may be good in part,
256
2. A by-law made by a corpora-
tion, inflifting a penalty upon
fuch members of the corpo-
ration as do not pay obedience
thereto, is good 275
3. A by-law, for reftraining the
number of eleSors, is good,
263
4. A by-law for reftraining the
number of perfons, out of
whom an eledion may be
made, is void, 263
5. If a by-law be uncertain, or
contrary toa ftatute, it is void,
252
6. A by-law, giving a power to
diftrain for a penalty due by
cuftom is good, 183. — But a
by-law whereby a power is
given of felling the goods dif-
trained for a penalty, is void,
263
7. If an aSion be brought upon
a by-law, whereby a penalty
is infliSed, for not taking the
livery of a company, it muft
be alledged in the declaration,
that the company have a li-
very, ' 27 s
MATTERS.
Cafe referved.
I. The court cannot, upon a cafe
referved take into their confi-
deration arty queftion, except
that which is fubmitted by the
cafe. Page 5
Certiorari.
1. The attorney-general may
move for a Certiorari^ to re«^
move an indi£^ment for not
repairing a highway, without
an affidavit. 128
2. A certiorari does not lie, for
removing a warrant of a juf-
tice of the peace, . 7
Cheat.
1. A indiSment, for affirming to
be a merchant, and prodtic-
ing commiffions as a mer-
chant, was holden to be good,
206
2. The court refufed to quafh
an indi3ment againft a marri-
ed woman, for affirming her*
felf to be a Tingle woman, 22^
3. An indidment for delivering
one bufhel and three pecksfof
coafs for two bufliels, was
quaihed, I46
4. An indidment for felling an
inferior kind of gum, for gum
feneca^ was quafhed, 205
5. An indiSment for felling bull
beef, for fteer beef, wa^
quaihed, 147
Church.
I. It is the province of the ordi*
nary, to regulate every thing
in a church, which, relates to
Uu 2 the
INDEX TO THE
the ezercife of divine fervice,
Pagei'jS
S. A (acuity may be granted by
the ordinary, for eredinsc a
gallery in a church, 1 78
3. The right of freehold in a
pew in a church, does only
extend 10 the fitting therein,
177
4* In an adion againfl a (Iran-
ger, for being didurbed in the
enjoyment of a pew in a
church, it is not ntcefliry for
the plaintiff to atled^re, or
prove, that he has repaired,
or is bound to repair the pew,
32
Clientr
1. A client is bound by the aS
of his attorney : Btrt the at-
torney is anfwcrabie for ^n
improper ad, if it be injurious
to the client, 259
Conviftion.
1. A conviSion cannot be^unlefs
the proceedings be againft a
perfon, 7
2. An ad done, by virtue of a
fbitute, is not to be deemed a
convidion, unlefs the word
convi^f or words tantamount
thereto, are contained in the
ftatute, 305
3. If a time for profecuting be
limited, by a ftatute creating
an offence, the precife day,
both of the offence, and of
- theconviSion, muft be fhewn
in a conviftion: But if no
tinr»e be limited, it is not ne-
ceffary to (hew either, 306
/j.. Although the words of a fta-
tute be general^ the defcripti-
on of an offence in a convict
tion upon the ftatute muft be
particular. Page 204
5. The authority to convid muft
be ftiewn in a convidion. 129
6. The evidence muft be fet
out in a convidion, 30^
See Forcible Entry, 3.
Coroner.
I. The court refufed to quafti an
inquifition before a coroner,
whereby it was found, that
only the near fore- wheel
of a waggon did move to the
death of a man, 250
Cofts.
1. A rule was made, for ftayiog
the proceeding in an adion
for the mefne profits, brought
in the name of the nominal
plainti^Fin the adion of ejed-
ment, until fecurity ftiould be
given for the cofts in the prc-
fent adion, 7^
2. The relator, in an informati-
on in the nature of a quo war-
ranto, is liable to tofts, for
not proceeding to tfial purfu-
ant 40 notice, 130
3. If a feigned iffue be ordered
by a court of i^iw, the cofts
follow the verdid, :i5, 253.
— ^But only the co^s fubfe-
quent to the qrdentf^ jii ihe
iffue are to be paid, 25, .250,
25.3
4. If a caufe, made a remanet at.<
one afllze, he tried at another,
the cofts of both affixes follow
the verdid, 272
5. Ifaplaintiffproceed after hav-
ing taken money out of court,
he
PRINCIPAL MATTERS.
he is nor, although he after-
wards difccntinue the aSion,
entitled to cofl:« to the tinne of
bringing in the money Page 196
6. The plaintiff is not entitled to
full cofts, for an injury done
to a perfoni^I chattel, if the
injury were eonf..quentfal, 92
7. A ceitifiv.ate ma) be upon the
43 Eltz. c. 6. if f*n intcreft in
land be not viiredly in qucfti-
on, 251
8. If there be a certificate upon
the 43 Eliz, c. 6. the plaintiff
is not entitled to any cofts un-
der the 4 ^nn, c. i&, 261
9. If a plaintiff be liable to cofts,.
in cafe the debt to be reco-
vered do pot amount to forty
fhillings, he is liable, in cafe
he do not obtain 4 verdiA for
forty (hillings, ^274
10. If cofts are due upon a Judg-
ment, or under a rule of court,
in an aSion by or againft a
huft)and and wife, the wife in
cafe (he furvive her hufljand,
is entitled to the cofts, 126
Covenant.
1. If a covenant be to pay one of
two things, at the eleSion of
the payee, and the breach af-
figned in an aSion of cove-
nant be, that neither of the
two was paid, it is not necef-
fary, for the plaintifjF to al-
ledge in his declaration, that
he made an eleQion, 232
2. In aH aSion upon a covenant,
that an apprentice (hall not
abfent himfelf from his maf-
tcr's fervice, the receiving of
jhe apprentice after an ab
fence, may be given in evi-
dence in mitigation of da-
mage8, Page 116
Court of Delegatc&r
i. A court of delegates, fitting
in Ireland^ under a commiifi-
on from the Lord Chancellor
of England is to be confidered
as an EngUJb court of juftice,
258
a.« A fentence of excpnuntmica-
tk>n may be given by a court
of delegates, 258.— And the
perfon excommunicated may
be abfolved by the fame court,
259
Court of Quarter Scflions.
An indidment found at a
quarter feffions, for exercif-
ing the office of a bailiff of a
corporation, without having
taking the oath of altegiance,
and received the facrament,
was qua(hed for want of jurif-
didipn, 138
2. An indiSment found at a
quarter (eilions for perjury,
was quaihed for want of jurif*
dtdion, 278
3. A mam^aim'/ wasf awsinfecf, for
a court of quarter feftibns to
hear an appeal to an order of
two juftices, 282
See Order of feflioni?, f, 2, 8.
Cuftom.
A cuftom of a city, whfch ex-
tends beyond the liberties of
the city, is good, 255
A cuftom of a city, to ^xclude
foreigners from ei(pofing
goods to' faTe in the city, is
good^ ahhougb it do not ex-
cept
INDEX TO THE
ccpt the expofing of viduals
lo falc, 182.— Or although it
do not except ihc cxporing of
goods to fale in fairs or mar-
kets, P^ge 255
3. A cuftom, by which the per-
fon who cxpofcs goods lo fale
in a city is liahic to pay a rea-
fonable pcnahy, is good, 182
4. A cuftom, to didrain for a pe-
nalty due by cuftom, is good,
1,2 "—But a cuftom, to dif
drain various goods of great
value for a fmall penalty due
by cuftom, is void, 183
5. If the penalty, for which a
diftreft may be made, is to be
paid to the two bailiffs of a
corporation, one of the bai-
Kflfe may diftrain for it, 183
6. Akhough one cuftom be the
confideration of another, the
former cuftom is not to be
confidered as a parcel of the
latter, 57> 5^
Debf.
1. A fimplc contraft debt is not
cxtinguiftied, by being allow-
ed in a fettled account 270
2. An adion of debt upon a judg-
ment ought to be difcourag-
ed, 44> i^i
3. Leave was given to imparl in
an aSion of debt upon a judg-
ment, ufTtil a writ of error
brought up on the judgment
ihould be determined, 44
Delaining,
I. The general right of a perfon,
to detain a thing which has
been delivered to him, is wav-
ed by a fpecial agreement,
224
Ejcdtmcnr.
1. The notice to appear to a At*
claratioh in an a6lion of ejed-
ment, muft be to appear in
the term next to that, of
which the declaration is.
Page 49
2. The tenant in pofieflion can-
not appear to a declaration in
an adion of eje£tment, after
the time allowed by the com-
mon rule for appearing is ex-
pired, 151
3. Judgment cannot be figned, in
an an adion of ejeSment,
againft the cafual ejedor, un-
til the afternoon of the fifth
day after the end of the term,
of which the declaration is^
303
Efcape.
I. An information not permitted
to be filed againft a goaler, for
fofteringa prifoner to go at
large, 145
Evidence.
1. An exemplification of a re-
cord of the court of exche-
quer, under the feal of that
court, is admiftible evidence,
298
2. Evidence, that part of the
confideration-money mention-
ed in a conveyance, was not
received for the land convey-
ed, is admiftible, 210
3. Evidence, which is contradic-
tory to an allegation under a
Scilicet, may be admiftible,
221
4. Parol evidence, which is in-
confiftent with a written
agreement, is not admiftible,
189 I
5. If feveral iffues are to be tried .
at
PRINCIPAL
at the fame time, the evidence,
as to every iffue, may be gi-
ven fcparately. Page 131
6. It is not neceffary to give evi-
dence, as to any thing alledg-
ed in the pleadings, the alle
gar ion of which was not ne
cciTary, 142
7. Alter a conviftion upon an
indi<^ment, an affidavit cann* .
be received in mitigation oj
the punifhraent, as to any fad,
of which evidence might
have been given upon the
trial. 233
8. A rule for infpefting books,
in order to obtain evidence,
may be applied for, as foon
as a rule is made to fhew
caufe, why an informalion
fhould not be filed : But fuch
a I ule cannot be applied for
in the cafe of a manidamus^ ua-
til there is a return to the
Mandamus f 145
9. A rule was made, in the firl^
inftance, for producing a book
belonging to a corpoiation,
at the trial of an information
in the nature of a quo iKjananto^
10. A rule, for uilpLft^M.g the
books of the coinrniHioners
for licenfing hackney coaches,
was refufeo-. hecaufe the com-
milfionejs were not partie? to
the a<!-n;)n, 250
Executory Devife.
I . A devife in a will can never
take eflVa as an executory
devife, if it can take eflFefl: as
a remainder, 238
\3
M A.T T E R S.
F.
Feigned Iffue.
, If a feigned iffue be ordered
by a court of law, the cDfts
follow the verdiS, 25, 25^.
— But only the colls fubfe-
quent to the ordering of the
iftue are to be paid. Page 25,
230, 253
Fieri Facias,
k fieri facias cannot be fued
out againft an executor or
adminiftrator, until two writs
f^ fcire facias have been fued
out, ^66
Fine.
, Large fines have been fct
upon the perfons conviAed
upon indictments for public
nufances ; becaufe the defen-
dants refufed to go before the
mafter, ao, 1^96
. The court refufed to fct a
large fine, upon two peribns
conviSed upon an indi£tment
for an affault, although ihcy
refufed to go before the ma(-
fer, 196
It is in one cafe faid, that the
court will not, for the time to
come, fet a large fine in any
cafe, upon a perfon convided
upon an indidment^ although
he (hall refufc to go before
the mafter, 231
Forcible Entry.
, An indidment for a forcible
entry is good at the common
law, although it be not alledg-
cd, that the entry was with a
ftrong hand, 227
2. An
INDEX TO THfi
2. An indidmcQt for a fortible
entry is not good, unlefs the
eftate of the pcrfon, upon
whom the entry was made, be
ibewn. Page 143, 225
3. A conviflion for a forcible
entry is not good, unlers there
be an adjudication therein,
that the perfon conviSed (hall
be committed until the fine
fet is paid, 1 76
Forgery.
I. A forgery deteded, by mea-
furing the writing, 1 32
Fraud.
I, The court will never prer^me,
that an adion is brought with
a fraudtileot defign, 295
G.
Game.
1. A ^un is not an engine for
killing the game, within the
meanmg of the 5 Ann. r. 14.
unlefs it have been ufed for
killing game^ ^ 16
2. A poulterer is not fuch a
chapman, as is liable to a pe-
nalty, for having at hare in
his pofleflion, 192
3* In an adion for the penalty
given by the 9 Ann, r. 2^. for
expofing a hare to fale, it is
funicient to alledge in the de-
claration, that the defendant
had a hare in his pofleflion,
65
H.
Highway.
I. If a highway be not much
wanted for theufe of the pub-
lic, an indi3merit will nor
lie, for fuffefing it to be out
repair, P^ge^'^
2«4f there be two vilh in a pa-
Oih, it is not neceflary, in an
indiftment for a nufance in
thepariOi, to frcw in which
vili the nufance is, j 19
3. In anindidment for a nufance
in a way, it is not nectflary
to alledge, that the way is
common for all the king's fufar-
jeds^ 168
4. In an indiSment for a nufance
in a highway, it is n6t nectf-
fary to alledge, that it fias,
from time beyond memory,
been a highway^ 67
5. It is tiof neceffary^ to fet oot
the length or breadth of a nu-
fance in a high way, in an in**
didment for the nufance, 98,
167,302
6. If it be alledged, in an in-
didment for obAruding a
highway, that ail the king's
fubje£b have a right of paiTing
in the highway on foot, on
horfeback, and in carriages,
and only a right of pafiing on
foot is proved, the defendant
ought to be acquitted, 169
7. The court will not permit an
information to be filed, for
fuflFering a highway to be out
of repair, unlefs it be a cafe of
enormity, and it appear, that
a grand jtlry have grofsJy mif-
behaved, in not finding a bill
of indi&nent^ g$
Hufband
l^ R I N C I P A L
Hufband and Wife,
i. A wife ought to join with her
hull)and, in an aSion for fay
in? of the wife, that (he keepi
a b.^wdv-houfe, P^g^ 33
2. Ifthere be judgment in an ac-
tion againft hufband and
wife, the wife may be taken
in execution without the hul*
band, 15^
See Cofts, lb.
I.
Indidlinent.
1. The power ofquafhing an in-
diftmcnt is entirely difcretion-
ary, 27, 158, 16:
2. A motion to qualh an indiS
ment may be made upon the
la ft day of a term, 65
3. An indiQment may be qua(h-
ed after it has been pleaded to
158
4. An indidment was quafhed,
becaufc the addition of the
perfon indiSed followed an
(jtherwife called^ 280
5. The court refufed to quafh
one indiSment, wherein a
breach of the peace, in con-
fequencc of an aflembly ^to
difturb the peace, was charg-
ed, 27. — Another, wherein
the charge was, knocking vie
lently at the outer door of a
dwelling-houfe, 161. — Ano-
ther wherein the charge was,
that the defendant, a man,
did pifs in a room, in the pre-
fence of two women, 158
See Cheat, 2, 3, 4, 5.
MATTERS.
5. if there be two vills inaparifli
it is not ncceffary to (hew in
an inc'iSment, of which vill
the defendant is. Page 1 19
See Highway, 2.
7. The words, force and arm^,
in an indtdment, do always
mean adual force, 227
8. an indiftment which con-
cludes againft the ibrm of a
iiatute may be good at the
common law, although it be
not good upon the ftatute, 226
9. Although the words of a fta-
tute be general, the defcrip-
tion of an offence, in a con*
vidion upon the ftatute muft
be particular, 204
10. A view cannot be had in aa
indidment without confent,
304
1 1. If there be only one count in
an indi&menr, unlefs the
whole charge therein be prov-
ed, the defendant ought to
be acquitted, 169
12. If there be a general verdid
ef guilty upon an indifibmenty
which contains feveral counts,
judgment muft, if any one
count is good, be given for
the king, 228
See Cheat, i. — Court of quarter-
feffions, I, 2. — Evidence, 7.
—Highway, i, a, 3, 4, 5, 6.
-i-^lnnuendo, i.— New Trial,
4. — Order, 9, 10.— Parifti
Officer, 2, 3.
Information. n^
I. A motion for an information is
not to be made upon the laft
day of a term, 241
Xx
Set
INDEX TO
See Efbape, i — ^Highway, 7.— I
iuftice cf the Peace, 2, 3 — j
Jbcl, 1, 2.— Parilh Officer/
4-
Information in the nature of
a Sluo fVarranto.
1. An information in the nature
of a ^ warranto lies for ufurp-
ing a franchife, although
there have been a furrendcr
of the franchife, Page 239
2. Several matters cannot be
pleaded, in an information in
the nattire of tL quo warranto , 96
3. Judgment of uij^^ ought not
to be given, in an information
with the nattrre of a quo war-
ranto at the common law, 247
4. Judgment of Oujler ought not
to be given, in an informati-
on in the nature of a quo wat^
rattto upon the fhttlte, againfl
a perfon who has not been
fworn into a franchife, 247.—
or againfl a perfon, who has
ipfofa^o forfeited his franchife,
248.— Or againft a perfon,
who came lawfully into the
poffciTron of a franchife, un-
lefs there have been a previous
amotion of fuch perfon from
his franchife, 248
See evidence, 9. Highway, 7.
Innuendo, i. New Trial, 3.
Innuendo.
I. An innuendo may explain or
apply preceding words : bui
it cannot add to, enlarge, or
change the fenfe of the pre-
ceding words in a declaration,
in an indidment, or in an in>
formation, 28 1
THE
Judge.
1. It is not a good objeSion to a
judge, that the corporation, oF
lirhich he is a member, is in-
terefted in the z^ii^^^Page 255
2. The proceedings in a cauic
are not llayed by the fummons
6f a Judge : But a judgment
ivas (et afide, becaufe, on all
the circumrtances of the cafe,
it was very improper to fign
it pending the fummons of a
judge, 166
Judgment.
.t. A judgment, figned in lefs
than twenty- four hours, be-
caufe the iflue is not paid for,
is irregular, 9
ii A judgment to a(k pardoo,
and to publiAi an advertife-
ment, is illegal, 44
3. If a verdtd be incomplete, no
judgment can be given upon
it, 36
4. Judgment, as in the cafe
of a nonfuit, ought not to be
given, unlefs aU the defen-
dants apply fot it, 23, 104
5. Judgment, as m the cafe of a
non-fuit, may be given in an
adion qui tarn for a penaky, if
no part of the penalty be gi-
ven to the king, 22
5. Judgment, as in the cafe of a
nonfuit, may be given in a
traverfe of the return to a
mandamus, 110
7, Judgment, as in the cafe of
nonfuit, was given, where the
caufe was not tried, by reafbn
of a miftake in the declarati-
on, 75
See
PRINCIPAL
See Debt, 2, 3.— Ejeftment, 3,
•^IndiSment, 12.— Informa
tion in the nature of a quo war-
ranto, 3, 4.
Juror.
1. It is not a good objeftion to
a perfon on the panne), that
the corporation,* of which ht
is a nienfiber, is interefled in
the caufe. Page 255
a. The perfons, upon the pannel
for a fpecial jury, ought to be
fummoned a fufficient time
before the trial is to come on,
30. — Only twelve perfons
ought to be returned, for the
trial of a caufe in an inferior
court: But if twenty four
are returned, it is not error,
250
Juftice of the Peaqe.
|. A want of authority, to com-
mit to prifon, is not to be in-
tended in a juftice of the peace,
130. — But the authority of a
juftice of the peace, to con-
via, muft be fliewn, 129, 130
2. The court will not give leave
to file an information againft
a juftice of the peace, unlefs
he have aded from a corrupt
or partial motive, 26
3. Leave was given to file an in-
formation againft a juftice of the
peace, for difcharging a pri-
soner upon bail, clearly infuf-
ficient, 243. — For very im-
properly retufing to licenfe a
number of public houfes, 217.
— rfordifobedicnce to a manda-
mus, 267
MATTERS.
Landlord and Tenant.'
|. A tenant cannot plead nil
habuit in tenmentif, to an adi-
on for the ufe and occupation
brought by his landlord,Ar^^i3
2. It is not neceflary to alledge
exprefsly, in the declaration
in an adion for the afe and
occupation of land, that the
land is the land of the plain-
tiff, 14
3. A tenant may always dedud:
the money paid by him for
land tax, unlefs there be ait
exprefs agreement, that the
money paid for land-tax fhall
not be deduced, 79
4. It is not neceflary to alledgc
expreifsly, in an order upon
the 1 1 G. 2. c. 19. when the
rent became due, or that it
was due at the time the ten-
ant carried off his goods, 396
5. It is not neceffary to aliedge
exprefsly, in an order upoix
the 1 1 G. 2. c. 19. againft the
perfon who affifted the tenant
m carrying off his goods, that
the tenant did carry off his
goods, 307.
Libel.
r. The court refufed to give
leave to file an information,-
as for a libel, againft a prin-
ter, who hud publiftied anad-
vertifement concerning a
married woman, by the or-
der of her huft)and, 122
2. The court refufed to give
leave to file an information, as
for a libel, for hnatter contain-
ed in an affidavit, exhibited in
the court of Chancery, 1 1 2
X X 2 Mali-
INDEX TO THE
Malicious Profecution.
1. An adion for a malicious pro-
fecution is not to be encou
raged. Page 163
2. In an adion for the ma'iciou-
profecution of a ciril t^lon,
the plaintiff mud allcdge in
his declaration, that the for
mer adion was determined in
his favour, before the pre-
fent adion was bi ought.
3. If an adipn be brought, foi
the malicious profecution of
an indidment, the plaintiff
muft alledge in his declaranCn.
that he was acquitted btfore
the adion was brought 162
4« If a bill of indi6lment have
been found a true bill, it is in-
cumbent upon the plaintiflF, in
an adion for malicioufly pro-
fecuting the indidmcnt^ to
prove czprefs malice, 2
Mandantus.
1. No precifc form is neceffary
to be obferved in a mandamus
37
2. The return to a mandamus
muft be in very precife terms,
39» 175
3. A mandamus was awarded u
juftice of the peace, for pp
pointing overfecrs of the poor,
230
4. A mandamus was awarded, in
the firft inftance, to jufticcs of
the peace, for allowing a
poor's rate, 160
5. The court will not award a
mandamus to jufticcs of the
peace, for licenfing a public
houfe, 217
6. A peremptory mandamus may
be awarded, in the firft in-
ftance, for eleding an officer,
Page 208
7. A mandamus^ for eleding an
officer, may be awarded upon
the 11 G. 1. r. 4. although
therV has been an eledion de
fa^o^ ' 212
S. A fecond mandamus for eled-
i'^gan officer was refufed, 105.
—But in another cafe, it ap-
pearing, that there had been
delay in • proceeding on the
fit ft mandamuty a fecond was
awarded, 106
9. It is not neceffary to fet out
par'.iculaily, in a mandamus for
eltding an officer of a corpo-
ration, the right of the cor-
poration to hav^ fuch officer,
10. It IS a good return to a man*
darms^ fpr eleding an officer,
that a perfon has been duly
eleded, 140
1 1. It is not a good return to a
mandamus y for reftoring a per-
fon (pan office, that he was
not eligible, 40
12. It is not a good return to a
mandamus y for reftoringf a per-r
fon to an office, that he was
amoved for negleding the
duty of his office, it being ne-
ceffary to fhew, in fuch cafe,
the particular inftancts of ne-
glcd . 39
^ff court of Qiiarter Seilions, 3.
— Judsrment, 6. — Parifh clerk,
2 — Juftice of the peace, 3.
Mafter and Servant,
I. If an injury anie trom the ne-
gled of a fervant, dn adron
does only lie againft his maf-
ter, 4^
2.11
PRINCIPAL MATTERS.
2, If an injury arifc from the mif-
feafance of a fervant, an ac-
tion lies againfl: the fervant,
Page 4^1
3. If a fervant by the command
of his mailer, op a tortious
aS, anafiion lies againft both.
Name.
The true name of a perfon, or
place, is that which precedes,
and not that which follows,
an otherwife called^ 2 79
See IndiQment, 3.
Navy Bill,
The property in a navy bill does
not pafs with cut affignnacnt, 73
New Trial.
1. A new trial v/as granted, be-
caufe the judge was diffatisfi-
ed with thcverdift, I, 2,264
2. A new trial was granted, be-
caufe the verdift was contra-
ry tothedireSionofthejudge,
in a matter of law, 2, 35
3. A new trial was jefufed, after
an acquittal in an informatipn
in the nature of a ^uo warran-
to, 102
4. A new trial was granted after
an acquittal in an indiftment,
becaufe the defendant had not
given due notice of trial, 90
5. A new trial ought not to be
be granted, upon the account of
an after thought of the jurors,
35
6. A new trial ought not to be
granted, upon the account of
a miftake, made by a witnefs
in giving kis evidence^^ 28
Notice.
1 . All notices mud be given to
the attorney in a caufe, if there
be one,or to his agent, Pii^f 133
2. By the praQice of the crown-
Office, a notice may be deli-
vered after nine of the clock
in an evening, 16^
Order of Removal.
J. A married woman, in cafe her
hufcand have left her, and
his fettlement be not known,
may be removed by an order
to her fettlement before mar-
rige, 199
2. If the father of a legitimate
child have not a fettlement
in England, the child may be
removed by an order to the
fettlement of the mother, 200
3. If upon an appeal to an order
of removal, it be quafhed up-
on the merits, the quafhing is
conclufive upon the pariih re-
moving, as to the parifli to
which the removal was; if it
be confirmed upon the merits,
the confirming is conclufive
upon the pariin to which the
femoval was^ as to all parlfhes,
287
Order of Seffions and of Juf- /
tices of the Peace.
1 . A motion to quafli an order of
feffions, or an order of juftices
of peace, cannot be made
upon the laft day of the term,
96
2. An order of fefliqns may be
quafhed in part^ 311
5. Every
INDEX TO THE
3. Every adjudication upon a fta-
tute, made by juftices of the
peace, is to be deemed an or-
der, if the word convid, or
words tantamount thereto,
are contained in the ftatute,
Page 305
4. It is not neccflary to fct out
the evidence, in an order of
juftices of the peace, 305
5. If a time for profecuting be
limited, by the (latute creating
an offence, ihe precife day,
both of offence and of the
order, muft be (hewn in an
order of juftices of the peace ;
but if no time be limited, it is
not neccQ'ary to fiiew either
day, 306
6. An indidment lies, for not
paying the cofts of an appeal
to a poops rate, purfuant to
an order of feffions, 144
7. In an indidment for difobedi-
ence tp an order of feffions,
the order of feffions ought to
be fet out in the words there-
of, 143
See Baftard, 3, 4, 5 —Landlord
and tenant, 4, 5. — Parifli of-
ficer, 2.
Parifh Clerk.
1. The offence of parifti clerk is,
prima facie y an' office for life,
2. A mandanms lies for reftoring a
perfon to the ofBce of parifti
clerk, 159, 175
Parilh Ogker.
|. A coUeftor of toll at a
turnpike is a parifli officer, 27 7
2. An iodi3ment lies, againd a
parifti officer, for lefufingto
receive a pauper^ removed by
aQ order of juftices of t
pcacc^ Page\6i^
3. An lodidment does not lie.
againft, an overfeer of the
poor of a parilh, for not
making a rate of the poor,
purfuant to an order of feffi-
ons, I $2
4. Leave was given to file an in-
formation, againft a parifti
officer, for forcibly removing
a perfon who was dangeroufly
ill of the fmall pox, 78---FQr
binding a goor child, to ferve
as an apprentice in foreign
parts, \ 03.^>j-For giving a man
money to marry a poor wo-
man, who was a cripple;
whereby the charge of main-
taining her was thrown upon
another parifli, 260
Peer.
!• A fuit may be commenced
againft a peer by bill, 64
See Attachment, %*
Plaintiff.
I. The plaintiff in a caufe may
profecute his fuit, in perfon,
217
Pleading.
Jn the general.
1. Leave was given to imparl,
in an aQion of debt upon a
judgment, until a writ of error,
brought upon the judgment,
ft^ouid be determined, 44
2. If a thing alledged in plead-
ing may. be traverfed, it is
matter of fubftance, 275
3. If a thing be alledged in plead-
ing, which it was not neccf-
fary to alledge, it may be re-
jeded as furplufage, 142
4. If
PRINCIPAL MATTERS.
4. Tf what is contained under a
Scilicet y be contrary to a pofi-
tive allegation in the plead-
ings, it may be rejefted as
furplufage. Page 22 1
5. If only matter of record b^
pleaded, the ccfnclnfion mufl
be to the record, 300.-^— But
if matter of record, together
with matter of Faft, be plead-
ed, the conclufion mad be t^^
the country, 208, 300
6. If the plaintiff, in an adioi^
of an inferior coort, plead 3i
judgment of that coort, he
mull fliew the right of hold-
ing the court, iind that the
caufe of adion arife within its
jurifdidion: But if the defen-
dant, in an adion in an inferi-
or court, plead a judgment of
the court, it is not neceffary
for him to fhew either of
thefe things, 17, iS
7. In one cafe, which was an ac-
tion againft bail, the court re-
fufed to give leave tOj with-
draw a demurrer and amend,
after the demurrer had been
argued, and the opinion of the
court was known, 1 1 7
8. In another cafe, leave was
given to withdraw a demurrer
and amend, after the demur-
rer had been argued, and the
matter flood for the opinion of
the court, 315
9. In another cafe, after the de-
murrer was argued, and the
juftices had given their opini-
on, judgment was fufpended
for a week, in order to give
the defendant time to movej
for leave to withdraw the de-j
murrer and ameddj 3 1 is
Declaration.
r. A declaration againft a defend-
ant at large is good, although
a bill was not filed at the time
of delivering it: But a decla-
ration againft a defendant in
prifon is not good, unlefs a
bill were filed at the time of
delivering it. Page 49
2. A new count cannot be added
to a declaration after two
terms : but if the time for
bringing a new adion be ex-
pired, an amendment, which
amounts to the adding of a
new count, may be made af<*
ter two terms, 173, 235
3. If an aSion be brought for
the following words, thou art
a Jbeepjiealing rogue, and fat"
mer Parker told me fo, it is not
neceflfary to aver in the decla-
ration, that farmer Parker did
not tell the defendant fo, 265^
i'tff By-Law, 7.-*-Church, 4.**-i
Covenant, i .— Ganie, J.—
Innuendo, i.-^Land and Ten-
ant, 2.— Malicious Profecuti-
on, 2, 3.— Stocks, 2.
Plea.
1. The pendency of a prior afli*
on may be pleaded, in bar of
a fecondadion of the fame
matter ; but it cannot be
pleaded in abatement, 216
2. Every particular faS, pleaded
in a plea of privilege, muft be
verified by affidavit, 19
3. The affidavit, in verification
of a dilatory plea, tAuft be
pofitive, as to every matter
of fafi, which is therem
pleaded, 295, 294
4. A de-
INDEX
4. A demurrer, unlefs it be for
good caufe, is not an iflfuable
plea, within the meaning of
aii undertaking to plead an
ifltiabte plea. Page 88
5. Le^ve was given to plead two
pleas, which appeared 10 be
immaterial 29
6* Infancy, or a releafe, may be
ofther pleaded fpecially, or
given in evidence upon the
?eneral ifltie, 270
fiout temps prift be pleaded
by an admtniftrator, he mufl
aver, that hb inteilate was at
all times, from the time of
making the promife to the
time of his death, ready to
pay ; and that he has at all
times, fince the death of his
teffator, been ready to pay, 18
8. The allowance of a iimple
contrad-debt, in a fettled ac-
count, cannot be pleaded in
bar of an aflion of tndeb, Af
fumpjit^ 270
9. A plea cannot be waved up-
on the lafl continuance-day»
without the leave of the court,
87
10. A marriage, before the lafl
continuance-day, cannot be
pleaded in a plea of Puis dar
rein continuance^ 368
11. Non affumpftt infra fex annoj
is a fpecial plea, 97
See Bond, 7.-Landlord and Ten-
ant I.— Trerpafs,28.Trover,4.
Replication.
1. Leave was given to reply af
tcr two terms, it being confi-
dered as an amendment 172
2. If a replication in an informa-
tion in the nature of a ^0
Warranto^ be delivered during
the time of vacation^ it is not
T O T H E
neceflary to give a rule to re-
join, . Page 165
Rejoinder.
I. Upon the particular circum-
ilances of the cafe, time was
given to rejoin, 197
Poor.
1. The flatutes, under which
overfeersof the poor may be
appointed, are to be confliu-
cd flriaiy, 279, 280
2. Overfeers of the poor are not
to be appointed for a precinfl,
279, 280
3. Separate overfeers are not to
be appointed, for a townihip
or vili, in a parifli, unlefs the
townfhip or vill cannot have
the benefit of the 43 £//z. c. 2.
148
\. A peremptory Mandamus was
awarded, in the firft inftance,
tojuftices of the peace, f©r
allowing a poor's rate, 160
5. A popr^s rate cannot be
amended, by inferting the
name of any perfon, or leav-
ing out the name of any per-
fon, unlefs the name of ihe
perfon, intended to be inlert-
ed or leit out, were mention-
ed in the notice of appeal to
the rate, 118, 119
See Mandamus, 3 — Order of
Seffions, 6. — ^Parifh Officer,
2, 3- 4-
Pqftea.
I. If the defendant in an indi<9-
ment be found not guilty, the
clerk in court Itswft perfei2 the
Pojlea^ by entering an acquit-
tal, and bring, it into court,
although his bill of fees be not
paid^ 14
Power.
PRINCIPAL
Power.
I . A devife to a ftranger was hoI»
den to be void, at not being
warranted by the power gi-
ven by a marriage feitlement.
Page 296
Prebendary.
I. A prebendary is hot entitled
to any part of the revenue oF
a church, before it is divided
into (hares, unlefs a particu-
lar part of the revenue be al
lotted to his prebend, 85
Prifoncr.
I. A prffoner may be removed,
by the perfon atwhofe fuit he
has been taken in execution,
out of ihecuftody of the flier-
iff into the cuftody of the mar-
(hal, 154
Ut. The firft payment of two
fhillings and four pence is to
be made to a prifoner, upon
the day of giving him notice,
•and the weekly payment is
afterwards to be maide upon
the firft day in eVery week,
102
3. If there have been no proceed
ing againft a perfon, who is in
prifon for want of appearing,
within four months, the pri-
fodcr, upon entering an ap-
pearance, is entitled to sl fu- 4
perjedeas^ 1 1 1
4. If, upon a prifoner^s being
brought up by a habeas corpus^
it appear, that he is in cuflody
under an illegal judgnaent, he
may be difcharged, 44
Procedendo.
MATTERS.
fendant had pleaded privi/cge,'
although the court refufed to
award a writ oi fuperfedeas to
the plea of privilege. Page 156
I .A writ oi procedendo was award<
ed, in a cafe wherein the de-
Proceedings*
\* The court will not make a
rule for ftayihg proceedings ill
a caufe upon an affidavit that
the fum of forty fhiliings is not
due to the plaintiff, 219,241.
---But the court will fome-
times^ upon fuch Affidavit^
make a rule for referring the
matter co the mafte^^ 24c
Prochein Any^
:. An infant cannot fuc by/r^
chein amy^ in ad aftidn forthe
penalty given to a common
mformer, 51
Prohibition.
:. If the defendant) in a ftfit-in
a fpiritual court, do not refide
within the jurikiiAion of the
cooft) a prohibition lies, 1 5S
I. If a fuit be inftituted in a fpi-
ritual court, againft the oc<^u«
pier of a corn-mill, for predial
tithes, a prohibition ti^S, 43
;. A prohibition does not lie ta
a fuit in a fpirituaf cotirt, for
a faculty to eieda galtery in
a church or chapel, 1^8
If the fpiritual court had Hoc
jurifdiftion of a matter, cofn-
cerning which fetitence has
been given, a prohibition lies
after the fenteftce, 177
Promiffory N*ote.
. It is not always neceflary, in
an adion upon a promiftbry
note, to give zQxa\ proof,
that the name of every indor-
Yy for
INDEX TO THE
for of the note is of his hand- i
writmg. Page 223
S. The venue may be changed ii.
an tfUbn upon a promiflbry
note, 7
Record.
I • The iflfuing of a writ is matter
of record, in the court from
which it did ifTue, 300
2. No credit is to be given to an
affidavit, which is contradic-
tory to a record of quarter h^-
(ions, ' 286
Remainder.
I. If a devife may take effeA as
a remainder, it cannot take
effed as ao executor's devife,
238
S. If a remainder be limited by
a will to a perfon in ejfe^ it
does always veA eo injiante the
teftator dies, 238
Rule of Court.
1. The praftice of the court,
notwithftandine it have va-
ried from the letter of a rule
of the court, ought to be ad-
hered to, 303
2. If the fa3s alleclged in an affi-
davit, upon which a rule to
fhcw caufe was made, are fo
pofitively and cxprefriy denied,
in an affidavit upon which
caufe is (hewn, that, if the de-
nial be falfe^ an indidmenr
will lie for perjury, it is the
courfe of the court to difcharge
the rule, 1 1 1
Sailor.
I. Two or more failors may
joioj in a fuit in the court o\
Admiralty, fof their wages,
Page 127
2. A furgeon of a (hip may fue
in the court o* Adraiiraliy, for
his wages, 1 37
3. A mate of a fliip may fue in
the court of Admiralty, for his
wages, 137
4. A fuit may be inftituted in the
court of Admiralty, for wa-
ges, due upon a contra A
made on land, 137
5. A fuit may be inftituted in
the court ofadmiralty, for
wages, although the (hip had
not failed out of the river
Thames^ at the time the waees
became due, 127
Settlement.
1. One fettlement cannot be de-
termined until another is
gained, 199
2. The fettlement of a woman
before marriage is not fufpend-
ed, during her being under
coverture, 199
3. If the father of a legitimate
child have no fettlement in
England^ and the mother have,
the fettlement of the mother
is the fettlement of the child,
200
4. If a perfon refide forty days
upon an eftate, to which he
became entitled by ad of
law, he gains a fettlement, 5
5. If a father, without receiving
any pecuniary confideration,
grant the remainder of a term
of years in a houfe to his
daughter, and the hu(bandof
the daughter, refide forty days
in
PRINCIPAL MATTERS.
in the houfe, he gains a fet-
tlementy however fmall the
value of the term is, Page 269
6. A fettlement is gained, by the
occupation of a tenement of
the annual value often pounds,
an aSual hiring not being ne-
ceffary, 312
7. The fettlement, gained by the
hiring of a tenement of the
annual value of ten pounds, is
not gained, by reafon of the
credit given by the landlord
to the tenant, 312
8. Tenant at will, of a tenement
of the annual value of ten
pounds, gains a fettlement,3i 2
9. A fettlement cannot be gain-
ed, by hiring the moiety of a
tenement of the annual value
offixteen pounds, 10
10. A fettlement cannot be gain-
ed by hiring the feed of land,
or wick of a dairy of cows, 21
11. An apprentice may gain a
fettlement, although the du-
ty were not paid for the fum
of fix-pence, which was the
confideration- money mention-
ed in his indenture, 170
12. A fettlement cannot he gain-
ed, by a hiring and fervice for
a year, unlefs ihe commence-
ment of the fcivice weic fub-
fequent to the hiring, 8
13. The gaining of a fettlement
IS not prevented, by the ab
fence ot a fervant, during the
year he was hired for, if tht
mafter receive him into his
fervice after the abfence 1 1 5
116
14. The gaining of a fettlemen=
is not prevented, by the mar
riage of a fervant, during the
year he was hired for, loi
15. A fettlement is gained, by
executing an annual office a
year, although it be executed
in only part of a pariih. Page
J 34
16. The fon of a certificate- man
cannot gain a fettlement, in
the pariih to which the certi»
ficate is addrefTed, by a hiring
and fervice in that parifh,
while his father refided under
the certificate, 12,171
1 7. It is in the general true, that
the fon of a certificate-man
cannot gain a fettlement, by
fcrving as an apprentice, in
the parifh to which the certi-
ficate is addrefled: But if a
certificate-man, or his family
have been removed by an or-
der of two juftices, or if the
certificate have not been refid-'
ed under for many years, the
fon of the certificate- man may
gain a fettlement, by ferving
as an apprentice, in the pariih
to which the certificate is ad-
drefled, although the certifi-
cate be not delivered up, 201,.
228, 305
18. The fon of a certificate-man
may gain a fettlement, by a
hiring and fervice in any pa*
rilli, except that to which the
certificate is addreffed, 228
19 The apprentice to a certifi*
cate man may gain a fettle-
ment, by ferving as an ap-
prentice in any parifh, except
that to which the certificate
is addreffed, 232, 288
Sheriff.
I . A SherjflF cannot do a compul-
fory aS out of his county :
but he aiay return a writ,or do
INDEX
•ny %€t which is not compuU
forj, out of his couoty^tf^^sS
Soldier.
I. A private man in one oF the
troops of horfe -guards is fucb
a foldier, as is not liable to an
arred, for a debt under ten
pounds, 107
Spintual Court.
1. Credit is always to be given,
by a temporal court, to the
judicial adsof a fpirituai cour* ,
142, 253
2. The fentence of a Ipiiiruai
court, in a cafe wherein fpi
ritual and temporal courts
have a concurrent jurifdlAion,
may be pleaded in a tempo-
ral court, 179
3. A temporal court, in order to
fupport the letters ot admi-
niflration granted by a bifhop
will intend, that the intertare
did not leave Bona Notabiliafi^
Statute.
J. It is the province of the court
to determine, what the moan
ing of any word or words
in a (latute is, 64, 192, 193
2. Great regard ought to he hat
ro the eftablifhed pra61ice o
the court in conftruing a (la-
tute, 6^
3. Judgment of n<7wy^/V cannot bt
given upon the 14 G. 2.r. 17.
in an aflion qui tam^ brous:! t
for a penalty given by a (la
tute, if any part of the pe-
nalty be given to the king, 22
4. The 13 G. 2. c, 1 8. whereb}
the time, for removing an or
der of juftices of the peace by
^ certiorari ^ is limited to fix
months, does not extend to
fh« king, 124
TO THE
5. The 5 IT. y M. r. 1 1 where-
by an affidavit is required, be-
fore a certiorari can be obtain-
ed, for removing an indtd-
ment for not repairing a high-
way does not extend to the
king. Page 124, 128
6. The words in the 13^14
^. 3. ^. 5. or any other per Jon
having prwilege ef parliament ^
do extend 10 a peer, 64
7. A poulterer is not a chapman,
within the meaning of the
word Chapman^ in the 5 Ann.
c. 14. 193
8. 1 he words, any other engines
to kill the game^ in the 5 Ann,
c 14. do not extend 10 a gun,
unlefs the gun have been ufed
for killing the gitme, 16
9. Charcoal is not firewood,
within ibe irveaning of a fta?*
tute, whereby firewood is ex-
empted from the payment of
toll at a turnfnke, 5
10. An agreement for the liber-
ty to Oack coals upon land, is
not a leafe ofthe land, within
the meaning of the Ratute of
frauds and perjuriej^, 4
1 1 . The words any uncertain in-
tereft in land^ in the ftatute of
frauds and perjuries, do only
relate to interefts, which are
uncertain as to the time of
their duration, 4
12. I^ a thm^ i^ required by a
ftatufe to be done in the next
term, the words, the next
terniy do always mean the next
teftn^ in which it is pofnble to
do the thinsr, 314
13 The 43 £//z, f. 2. and the
13 y 14 C 2. c. 12. by which
a power is given of appointing
overfeersof the poor^ ought to
be conftrued ftriSly, 279, 280
14. The
PRINCIPAL
14. The ioW \i.W.c.23.by%
which a reward is given for the
apprehending and profecuting
of felons, ought to be con-
ftrued liberally. Page 277
15. The 13 y 14 C. 2.C 5.
which was made for regulat-
ing the manufaSure of ftuflFs,
within the city of Norwici&nd
county of Norfolk, is a pri-
vate Oatute, 60
See Conviaion, 2, 3, 4.— IndiS-
ment, 9.
Stocks.
I. If the whole contraft for the
fale of ftocks be rcgiftered, it
is not neceffary, that the re-
gifter fliould be figned by the
contrafting parties, 190
2. If a contraa be, that A. (hall
transfer ftock, at a certain day
to B. and that B. fhall pay^a
certain fum of money to A.
for the flock, A. may main-
tain an aSion for the money,
without alledging in his decia- I j
ration, that he did afiually I
transfer the ftock, 189
Superfedeas.
1. Upon the delivery of a writ
of error to the clerk of the er-
rors, it htcomts SL fuper/edess
to Afiirejdcias upon the judg-
ment : But if bail be not put
in by the plaintiff in error,
within four days after the al-
lowance of the writ of error,
it ccafes to be a fuperfedeas,
2. A writ of error ctxram vobts is
not 2Lfuperfedeas\n itfelf : But
execution cannot be fued out
upon the judgment, while the
writ of error is depending^
MATTERS.
without the leave of the court.
Page 166
Surety of the Peace.
. The recognifance for keeping
the peace, entered into upon
the exhibition of articles of
the peace, is forfeited, by an
affault upon any perfon^
140
. This court will not award a
mandamus to a jufticc of the
peace, for taking a recogni-
fance for keeping the peace,
upon articles of the peace,
exhibited in this court, unlefs
there are fome very particular
circumftances in the cafe, 253
Tenancy in Common.
. By the words, equally to be di-
vided, either in a deed to ufes,
or in a deed at the common
law, a tenancy in common is
created, 71*7^
Tithe.
. No perfon is liable, as occu-
pier of a corn-mill, to the
payment of a predial tithe, 43
Trefpafs.
. An aaion of trefpafs lies for
the roaking of an exccflive
diftrefs, in cafe the diftrainer
had not any right to diftrain,
184
,. It is not neceffary, for the de*
fcndant, in an afiion of tref-
pafs for a falfe imprifonment
whojuftifiesthe imprifonment
under a capias of an inferior
court, to fet out all the pro-
ceedings in that court, or to
(hew that the caufe of the
adion in the inferior court
arof^
INDEX TO THE
arofe within the jurifdidion oF
that court, Pagi 82, 83
3. The detendanty in an aSion
of trefpafs, cannot jufttfy the
throwDig down of a ladder,
upon which a perfon is,
although the ladder were un
lawfully ereded upon the hnd
of the defendant, 139
Trial,
1. Thequcftion, whether there
hat been an ufage in a corpor^^
tion to have certain officers, is
proper to be tried by a jury,
37
2. Different iflucs, in the fame
caufe, may be tried in differ
ent terms, 130
3. Upon the trial of different
iflfues, at the fame time, the
evidence, as to every iffue.
may be given feparately, 131
4. A Trial at bar ought not to be
granted in any aSion, except
an adion of eje£lment, be-
fore iflue 15 joined, 155
5. A trial at bar ought not to be
granted, becaufe the caufe is
expe£^ed to be long, or on the
account of the value of the
matter in quedion, 79
6. It is not fufficient, for ^the ob-
taining of a trial at bar, to al-
ledge generally in an affi-
davit, that difficulty is ex-
peded to arife at the trial o\
the caufe; bgt the parti-
cular difficulty which is
expeSed to arife, ought to be
pointed out, 79
7. The trial of a caufe was put
off, becaufe the defendant's
attorney was fo ill, as not to
be able to attend the trial, 6$
S. The court refufed to give fur-
ther time, for the trial of a
feigned iffue, after the record
had, without any good reafon
appearing for fo doing, been
whhdrawn. Page 215
Trover.
1. A rule was made in one cafe,
upon the particular circum-
<Wices of the cafe, to (hew
caufe, why upon bringing a
book into court, for the con-
verfion of which an aftion of
trover was brought, the pro-
ceedings in the adion (hould
not be flayed, 81.— But in
another cafe, the court re-
fufed to make a rule of the
like kind, 120
2. It is equally a converfion to
fell the goods of jI. which
were delivered to the feller by
a perfon not having a lawful
authority to deliver them, as
as it is to take the goods of A.
and fell them, 41
3. If is as much a converfion in
A. to fell the goofls of B. for
the benefit or C. as it would
have been, in cafe A. had
fold the ^oods for the benefit
ofhimfelf, ^i
4. A releafe is the only thing,
which can be pleaded fpeciaily
in an adion of trover, 1 9
Venue.
1. The form of an affidavit for
changing the venue ^ 77
2. The venue may be changed,
after an order has been obtain-
ed from a judge, for time
to plead, 207
3. The venue may be changed,
by an amendment, after the
defendant has pleaded, 150,
294
4- The
PRINCIPAL MATTERS.
4. The 'venue may be chanejed,
in an adion upon a promiflbry
note, or in an adion upon
a policy of infurance^ unlefs
the policy be a deed. Page 7
5. The venue cannot be changed
in an information, 147
6. The venue cannot be chang-
ed upon the common affidavit
in a caufe wherein an attorney
of this court is plainiifF, 153,
180
7. The venue cannot be chang-
ed, from an Englijb to a Wekh
county, 48
8. The delivery of a writ Is ma-
terial evidence, within the
meaning of an undertaking to
give material evidence,entered
into upon the difcharging of
a rule to ihew cliife^ why the
venue fhould not be changed,
Verdift.
1. A verdia, for the finding of
which the jurors voted, is
good, 100
2. A verdia, for the finding of
which there was fufficient evi-
dence, is good, although im-
proper evidence was admitted,
190
3. A verdia, found ia an inferior
court, is good, although
twenty-lour perfons were re-
turned upon the pannel for
the jury, 256
4. Every intendment, which can
fairly be made, ought to be
made, for the fake of fupport-
ingaverdia, 164, 168
5. But the court will not intend,
that a thing, which is not
alledgcd in" the declaration,
was proved; becaufc there
was no neceffityof proving
fuch thing. Page 283
6. The court refufed to fet afide
the proceedings after a ver-
dia, on the account of a mif-
take, in inferting the word
London in the copy of the de-
claration delivered, inftead of
the word Mi ddief ex p 154
7. If a verdia do not find the
whole that is in iflue, nojudg-
ment can be given upon it, 36
Warrant.
I. It is not neceflfary, that the
authority to commit fhould*.
appear in a warrant of com'*
mitmeht, 129
Warrant of Attorney.
I. If a warrant of attorney, to
confefs a judgment, be enter-
ed into by two perfons, and
one of them die, judgment
may be entered up againft the
other, 6
Will.
1 . The meaning of former words,
contained in a will, may be re<^
drained by fubfequent words,
2. tf the manifeft intention of a
teftator cannot be ^nfwered,
unlefs the devifee of an eftate
take an eitate in fee, a fee will
pafs by the will, although
the words thereof are not fuf-
ficient to pafs fuch eftate, 195
3. If there have been a furren*
der of a copvhold edate, to
the ufe of the furrenderor*s
will, the eftate will pafs by
any words, in the will of the
furrenderor, which amount to
an appointment uiider the fur-
render^ 195
Witncfs.
INDEX TO THE,&c.
Witncfs.
I. A fathert who is a freeman of
a coqioration, is an admifliUe
Witnefs^ to prove a cufiom
in the corporationj under
which his fon claims a right
of admiflion to the freedom of
the corporation^ Page 46
a. An inhabitant of a parilh^
who is not rated to the poor^
b a competent witnefs, in an
aSion for the penalty the
moiety of which is given to
the poor of the pariOi, 180
5. The perfoD^ to whom money
has been given to forbear to
vote at an eleSion, is a com-
petent wtfaefs, in an afiion
for the penalty given by 2 G.
2. r. 24. 2iyy
4* A married woman is an admif-
fible witncTs to prove, that a
child, bom of her body, was
begotten by a man not her
huflband: but (he cannot be
admitted to prove, that her
huiband had no accefs to her,
62
Words.
f « The words,- for the fpeaking
of which an aAion has been
brought, are to be conftmed
by the court in that fenft.
wherein they are generalfy
underftoody P^g^ 265
2. An adion lies for fpeakmg the
following words of a woman,
Jbe keeps a howdy- houfe^ 3 j
3. An aSion lies for fpeaking
the following words, thou art a
fieepjfealing ro^ue, and farmer
Parker told me fo^ and it is not
neceflary to aver, in the de-
claration, that farmer Parker
did not tell the dcfencfant fo,
265, 266
See Innuendo^ 1 .
Writ of Enquiry.
1. It is not error, to make a
writ of enquiry, in an adion
commenced in the court of
Common Pleas by bill, return-
able upon a general return
^y\, 245
2. Thi^iign of the houfe, at
which a wrk of enquiry is to
be ^Ricuted, and that it is to
be. executed between two cer-
tain hours, mud be mention*
ed, in'the notice for executing
a writ of enquiry, 181
3. If the treble damages given
by ^h« 43 ^^^^- <■• a. have not
betoaflfsfled by the jury, a
writ of enquiry, may ,be obtain-
ed for tile afKfling of fuch da-
mages, 214
N
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